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People v. Durham

Case Date: 03/23/2000
Court: 2nd District Appellate
Docket No: 2-97-0368

People v. Durham, No. 2-97-0368

2nd District, 23 March 2000

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

BYRON M. DURHAM,

Defendant-Appellant.

Appeal from the Circuit Court of Kane County.

No. 96--CF--880

Honorable Philip L. DiMarzio, Judge, Presiding.

JUSTICE McLAREN delivered the opinion of the court:

This court affirmed, as modified, defendant's conviction in People v. Durham, 303 Ill. App. 3d 763 (1999). Our supremecourt, in denying defendant's leave to appeal, exercised its supervisory authority and vacated this court's judgment, orderingthis court to reconsider the case in light of People v. Whitney, 188 Ill. 2d 91 (1999).

Defendant, Byron M. Durham, appeals from his convictions of first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West1996)) and aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1)(West 1996)) and his consecutive sentences of 27years' imprisonment for murder and 9 years for aggravated battery with a firearm. We affirm as modified.

At approximately 3:30 a.m. on May 7, 1996, Joe Nunnally was shot several times and taken to Mercy Center Hospital,where he died from his gunshot wounds on May 9. Casey Stewart was also shot at that time, although his wound did notrequire medical attention. Defendant was arrested on May 9 and subsequently charged with two counts of murder in thedeath of Joe Nunnally and one count of aggravated battery with a firearm in the wounding of Casey Stewart. Following ajury trial, defendant was found guilty of all three counts and was sentenced to consecutive terms of 27 years (one count ofmurder) and 9 years (aggravated battery with a firearm) in the Department of Corrections. Defendant's posttrial motion wasdenied. This appeal followed.

Defendant first contends that the trial court erred in allowing testimony regarding Joe Nunnally's identification of defendantfrom a photo lineup. The trial court allowed the jury to hear testimony of Investigator Marshall Gauer of the Aurora policedepartment, who testified that on May 8 he and another investigator visited Joe Nunnally at Mercy Center Hospital.Nunnally was unable to speak at that time because he was hooked up to a ventilator and had a large tube in his mouth.However, Gauer explained that he wished to show Nunnally a photo lineup in an attempt to identify the shooter. Nunnallywas to nod his head up and down if he saw the picture of his assailant. Gauer pointed to each picture on the display andasked Nunnally if that was the person who shot him. Nunnally shook his head no at the first three photos. However, at thefourth picture, which was a photo of defendant, Nunnally nodded his head when asked if that was the person who shot him.When asked if he was positive, he nodded again. In addition, tears began to fall from his eyes when he saw defendant'sphoto. The trial court denied defendant's motion in limine regarding this testimony, finding that Nunnally's reaction toviewing defendant's photo was an excited utterance and a spontaneous declaration, thus fitting into an exception to thehearsay rule.

The requirements for admissibility under the excited utterance exception to the hearsay rule are (1) the occurrence of anevent sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time for fabrication; and (3)a statement relating to the circumstances of the occurrence. People v. House, 141 Ill. 2d 323, 381 (1990). The factors to beconsidered in determining whether a statement is spontaneous, excited, and unreflecting are time, the nature of the event,the mental and physical condition of the declarant, and the presence or absence of self-interest. House, 141 Ill. 2d at 381-82.

Looking to these factors and requirements, we conclude that the court erred in finding Nunnally's statement to be an excitedutterance or a spontaneous declaration. Foremost in our conclusion is the fact that there was no occurrence sufficientlystartling to produce a spontaneous and unreflecting statement. The occurrence that made Nunnally nod and begin to cry wasa police officer pointing to a picture of the defendant. While viewing a photograph of a person who shot him may havecaused Nunnally anguish or anger, this is not the type of startling event that causes an excited utterance under the hearsayrule. Were it otherwise, any statement made in response to viewing an alleged offender or his photograph would beadmissible. Taking this to its logical conclusion, even the mention of an alleged offender's name could then cause anexcited utterance. Any questioning of a victim that involved an alleged offender's name could then be used as substantiveevidence because of this rule. This is not the intention of this exception to the hearsay rule. The other factors to beconsidered are in this case inconclusive. Although 34 hours passed between the shooting of Nunnally and his viewing of thephoto, he was in intensive care, under sedation, receiving blood, and hooked up to a respirator. He had time to fabricate, buthis physical and mental conditions were not conducive to fabrication. That being said, Nunnally was lucid enough at thetime he met with Gauer to respond to questions and instructions from Gauer and pick out defendant's photograph. We cansee no self-interest on Nunnally's part to pick defendant out as his assailant other than to identify the person who shot him.However, Nunnally's statement fails the first requirement for admissibility under House. Therefore, we conclude that thecourt erred in finding that Nunnally's identification was admissible as an excited utterance or spontaneous declaration.

However, not all errors in the introduction of evidence require the reversal of a conviction; where other substantialcompetent evidence of a defendant's guilt is properly before the trier of fact, an error may be found to be harmless beyond areasonable doubt. See People v. Crayton, 175 Ill. App. 3d 932, 955 (1988). Our review of the evidence in this case leads usto conclude that the court's erroneous admission of Nunnally's identification was, indeed, harmless beyond a reasonabledoubt. Mickey Stewart testified that he knew both defendant and Nunnally and saw defendant, from only a few feet away,shoot Nunnally. His description of defendant's clothing matched that given by Casey Stewart. Stewart also testified to anargument between Nunnally and defendant two to three hours before the shooting in which defendant stated "all right,mother f---er, it's on now, I'm going to get you, you pussy." Dr. William Mollohan, who treated Nunnally in the emergencyroom immediately after the shooting, testified that, in response to questioning, Nunnally twice stated that "Byron" shot him.Byron is the first name of defendant and Byron Savage, the man who brought Nunnally to the hospital and was in theemergency room when Nunnally said "Byron." However, there was no evidence that Byron Savage shot defendant.Defendant presented testimony of four family members in order to establish an alibi. However, none of the witnesses sawdefendant at 3:30 a.m. on May 7, the time of the shooting; they all stated that defendant went to bed shortly after 11:30 p.m.on May 6 and that they saw him the following morning. Given this evidence, we conclude that the jury had more thanenough evidence, excluding the erroneously admitted identification, to find defendant guilty beyond a reasonable doubt.Therefore, the court's error is harmless and does not require the reversal of defendant's convictions.

Defendant next contends that he was not proved guilty beyond a reasonable doubt of aggravated battery with a firearm. Wedisagree.

A reviewing court will not reverse a conviction unless the evidence is so improbable that a reasonable doubt of thedefendant's guilt is justified. People v. Moore, 171 Ill. 2d 74, 94 (1996). The relevant question on review is whether, afterviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elementsof the offense beyond a reasonable doubt. Moore, 171 Ill. 2d at 95.

Defendant was charged with shooting Casey Stewart under section 12--4.2(a)(1) of the Criminal Code of 1961, which statesin relevant part:

"A person commits aggravated battery with a firearm when he, in committing a battery, knowingly or intentionally bymeans of the discharging of a firearm (1) causes any injury to another person[.]" 720 ILCS 5/12--4.2(a)(1) (West1996).

A person commits a battery when he knowingly or intentionally without legal justification and by any means causes bodilyharm to an individual or makes physical contact of an insulting or provoking nature with an individual. 720 ILCS 5/12--3(a)(West 1996). Defendant argues that, as there is no claim of insulting or provoking contact, the State was required to provethat Casey Stewart sustained bodily harm and an injury, and this the State failed to do.

Our supreme court has held that, while it is difficult to pinpoint exactly what constitutes bodily harm under the statute,"some sort of physical pain or damage to the body, like lacerations, bruises or abrasions" is required. People v. Mays, 91 Ill.2d 251, 256 (1982). However, direct evidence of injury is not required; the trier of fact may infer injury based uponcircumstantial evidence in light of common experience. People v. Norfleet, 259 Ill. App. 3d 381, 392 (1994).

Here, Casey Stewart testified that he was grazed by a bullet on his left arm; a mark or something "of that nature" was left onhis arm. Stewart refused medical treatment at the time, and the mark was gone by the time of the trial. Officer RonHinterlong testified that, although he spoke to Stewart about his injury on the night of the incident, he did not observe anyinjury. Detective Jim Coursey testified that he observed Stewart approximately two hours after the shooting and describedwhat looked "like a small nick or cut on [Stewart's] right arm."

We conclude that the State did prove defendant guilty beyond a reasonable doubt of aggravated battery with a firearm. BothStewart and Detective Coursey testified as to a mark on Stewart's arm; Coursey described it as "a small nick or cut."Certainly, nicks and cuts are similar in nature to lacerations, abrasions, and bruises. The fact that the mark was not stillpresent at trial is not remarkable, as many physical manifestations of harm, such as bruises and abrasions, are not of a long-term nature. The fact that Stewart and Detective Coursey testified that the wound was on opposite arms is not a basis forreversal, as this goes to the weight to be given the evidence by the jury and is not a failure of proof. Viewing the evidence inthe light most favorable to the prosecution, we conclude that a rational trier of fact could have found that Casey Stewartsuffered an injury when his arm was grazed by a bullet fired by defendant. We will not reverse defendant's conviction ofaggravated battery with a firearm.

Defendant next contends that he should not be subject to the truth-in-sentencing provisions of section 3--6--3 of the UnifiedCode of Corrections (Corrections Code) (730 ILCS 5/3--6--3 (West 1996)). We agree.

Our supreme court has recently held that Public Act 89-404 (Pub. Act 89--404, eff. August 20, 1995), which amendedsection 3--6--3 to include the truth-in-sentencing provisions, is unconstitutional, as it was enacted in violation of the singlesubject rule of the Illinois Constitution (Ill. Const. 1970, art. IV,