                           No. 3--05--0032            Filed:    10-5-07


                                IN THE

                   APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2007


THE PEOPLE OF THE STATE OF      )    Appeal from the Circuit Court
ILLINOIS,                       )    of the 14th Judicial Circuit,
                                )    Rock Island County, Illinois
     Plaintiff-Appellee,        )
                                )
          v.                    )    No.     03--CF--821
                                )
STEVEN D. LISLE, JR.,           )
                                )    Honorable Charles H. Stengel,
     Defendant-Appellant.       )    Judge, Presiding.


     JUSTICE SCHMIDT delivered the opinion of the court:


     Defendant, Steven Lisle, Jr., was convicted of first degree

murder and aggravated battery following a jury trial in the

circuit court of Rock Island County.       He appeals, claiming

improper hearsay testimony was admitted, necessitating reversal

of his convictions and entitling him to a new trial.       Defendant

also claims the State failed to offer evidence sufficient to

convict him of the first degree murder of LaRoy Owens.         We

affirm.

                              BACKGROUND

     Defendant's jury trial commenced on September 27, 2004.        The

State's first witness was DeMarco Hearn, the first cousin of the
victim, LaRoy Owens.    DeMarco lived at 513 6th Avenue in Rock

Island and was at home asleep in his room on the morning Owens

was shot.    He was awakened by a loud noise and his mom saying she

heard shooting on the side of the house.    Within a couple of

minutes of the sound of the shots, DeMarco went outside and saw

Owens lying on the ground next to a van.    DeMarco called 911

after he checked for a pulse on Owens and could not feel one.

       Tarisita Nimmers testified that the location of her house at
518 6th Avenue in Rock Island is about a half of block from the

location where Owens was shot.    Nimmers heard a single shot

followed by a 10-second pause and then five or six shots in rapid

succession.

       Judy Dixon, likewise, testified that she lived close to the

scene of the shooting and was at home when the police arrived

early in the morning on September 15, 2003.    She had just

returned home from work and was changing her clothes when she

heard gunshots.    She recalled a pause of a few seconds after

hearing the first shot, then a series of five more shots rang
out.    Following the sounds of the shots, Dixon heard what sounded

like two separate voices, as if the people talking were moving

down the alley that runs next to Dixon's house.

       Chantel Gillette, a police officer with the Rock Island

police department, testified that she was the first to respond to

the scene at 513 6th Avenue.    She arrived at the scene at

                                  2
approximately 4:15 a.m. on September 15, 2003.    When she arrived,

she observed DeMarco pointing in the direction of a body that was

lying next to the driver's door of a vehicle parked in the

driveway.    She went up to the body, saw a gunshot wound to the

victim's head, and determined that the person had no pulse.     The

officer then took steps to keep the area from being disturbed

until other officers arrived.    After she secured the area,

Gillette followed a trail of blood she saw leading down the
driveway and onto 6th Avenue.    The trail led to the home of

Angela Lee in the 700 block of 9th Avenue.    Gillette testified

that there were no significant pools of blood at any point along

the trail.    When she arrived at the Lee residence, the person who

had been bleeding was already on his way to the hospital.

     Mary Devine testified that she was employed as a "technical

investigator" for the Rock Island police department.    She

personally took photographs and measurements of certain

bloodstains that were located on and in a Ford Windstar minivan

parked at the crime scene.    She visually examined the van for
blood while the van was at the crime scene and then later, in the

more controlled and well-lit location at the Rock Island police

department.    During these examinations, Devine recovered samples

of blood she found at various locations on the inside and outside

of the van.    She submitted the samples to the Morton crime lab

for testing.    A stipulation was entered into evidence noting that

                                  3
a forensic scientist at the Morton crime lab, Debra Minton,

ascertained that the DNA from the blood found by Devine on the

inside panel of the driver's-side door matched the DNA profile of

the decedent Owens.   A separate stipulation indicated that Minton

would testify that the DNA from the blood that was found on the

front passenger door of the minivan near the door handle matched

the DNA profile of Ronald Hearn (thereinafter Hearn).       Devine

testified that, in her opinion, the bloodspatter evidence she
observed and collected was consistent with Hearn having been shot

somewhere on the passenger side of the minivan.

     Devine also described, by reference to a diagram, the

location of six spent shell casings that she recovered at the

scene.   Devine indicated that one of the shells was found on the

driver's side of the van and all of the others were recovered

from areas outside the van.   Devine was not able to find any

fingerprint evidence on the shell casings.       Devine also obtained

one fired bullet from within the fabric of the front passenger

seat of the van and took possession of the bullet that was
removed from the body of Owens.       Another stipulation was then

admitted into evidence that indicated firearms expert Chris Kozel

received the six shell casings and two bullets from Devine.       He

examined and performed tests on the casings and projectiles and

was able to render an opinion that all of the casings and

projectiles were fired from the same 9-millimeter handgun.

                                  4
     Devine further testified that the bloodspatter patterns of

the drops of blood she observed and collected from the ground and

on one of the shell casings near the passenger-side of the van

were consistent with the injuries Hearn sustained.   Whereas the

bloodspatter pattern found on the passenger-side door was more

likely to have been caused by the initial trauma of the bullet

impact, the blood she observed in the area of the shell casings

and going across the driveway was of a low impact variety.
Another stipulation was read during the latter part of Devine's

direct examination that indicated Minton had identified the DNA

in the blood recovered from the ground near shell casing number

two and it matched the DNA of Hearn.

     Dr. Edward Leon testified that he is an emergency room

physician and was working at Trinity West Hospital when Hearn was

brought in sometime between 4:30 and 5 a.m. on September 15,

2003.   When Dr. Leon initially examined Hearn, Hearn was in

stable condition with 10 entry and exit bullet wounds.   It

appeared to Dr. Leon that the 10 wounds represented 5 "through
and through" injuries in which the bullets had both entered and

exited Hearn's body.   Dr. Leon testified that the location of the

five shots that entered Hearn's body were to the right side of

his cheek, his left shoulder, and in the area of his left thigh

and left buttocks.

     The State called defendant's father, Stephen Lisle, Sr.,

                                 5
during its case-in-chief.   Lisle, Sr., testified that early on

the morning of September 15, 2003, he received a call on his home

phone from his son, the defendant.   Defendant was looking for the

phone number of one of his two sisters.   Lisle, Sr., did not give

the number to defendant as it was 4:30 in the morning and he had

to go to work that morning.

     Steven Metscaviz, a detective with the Rock Island police

department, testified that he responded to the scene at 513 6th
Avenue in Rock Island at 5 a.m. on September 15, 2003.    Detective

Metscaviz found the body of Owens next to the open driver's door

of a blue 1995 Ford Windstar van parked in the driveway.

According to Detective Metscaviz, defendant was taken into

custody at his girlfriend's house in Davenport, Iowa, nine days

later.   Defendant gave a statement to Detective Metscaviz and the

lead detective in this case, Dave Sullivan, after he talked to

his pastor and his attorney at the police station in Rock Island.

At around 6 p.m. on September 24, defendant, his counsel, and the

two detectives (Metscaviz and Sullivan) were present while
defendant heard and waived his rights under Miranda.     Defendant

told the detectives that he had not been with Hearn or Owens on

the evening of September 14 or during the early morning hours of

September 15.   Defendant also said he had not been with a person

named Korey Randle during these times.    He said he found out that

Owens and Hearn had been shot during a telephone call he received

                                 6
from an unnamed female.    He told the detectives that, at the time

the shooting took place, he was at his mom's house at 629 7th

Street.    As defendant was sitting on the front steps at that

time, a person who knows him named Darryl Hicks walked by and saw

him sitting there.    Earlier in the afternoon on September 14,

defendant told the investigators that he had been at Maudy

Traywood's house on 6th Street where a party was being held for

Steven Leonard.    While at this party, defendant saw Hearn and
Owens.    The detectives asked whether defendant had also seen

someone called "C Rider" at this party.    Defendant did not know

who "C Rider" was, but when the detectives told him that was a

name Korey Randle is known by, defendant said he knew who Randle

was.    Defendant did not recall whether he saw Randle at the party

at Traywood's house.

       On cross-examination, Detective Metscaviz acknowledged that

defendant had described Owens as a close friend who spent time at

defendant's house every day.    The detective also acknowledged

that the police had failed to locate any weapon that could be
tied to the shooting incident on September 15, 2003.

       Darryl Hicks testified that he knew defendant and Owens.    On

the night Owens was shot, Hicks was walking home and saw

defendant going into his mother's house on 7th Avenue.    No one

was with defendant at the time, and Hicks estimated this occurred

around five minutes prior to the shooting.    Hicks testified that

                                  7
he did not hear any shots from his house and he could not testify

with certainty where the defendant was when the shots were fired.

     Rock Island police detective David Sullivan testified that

he participated in a second interview of defendant that was

conducted on June 4, 2004, after defendant and his attorney had

already provided the Rock Island police with a verbatim

transcript of an audiotape statement defendant previously made to

his attorney on May 24, 2004.   According to Detective Sullivan,
the interview on June 4 was conducted in an effort to clarify

some details that were discussed in defendant's May 24 statement.

However, the interview on June 4 was not transcribed, audiotaped,

or videotaped.   During the June 4 interview, defendant indicated

that he was, in fact, present with three other people in the

driveway of 513 6th Avenue at the time Owens was killed.    In

addition to Owens, the people who were in or near the minivan

were the defendant, Ronald Hearn, and Randle.   Detective Sullivan

proceeded to detail the contents of defendant's May and June

statements, beginning with what defendant stated in his recorded
statement of May 24, 2004.

       I. Information Defendant Provided in May Statement
              As Testified To By Detective Sullivan

     Defendant disclosed that he was picked up by Randle and

Randle's little brother, Paris, at around 2 or 3 p.m. on

September 14, 2003.   Randle dropped defendant off at defendant's


                                 8
mom's house on 7th Street and he stayed there for awhile before

walking down to Hearn's house at 513 6th Avenue.   From there,

defendant walked a half a block to Traywood's house, where a

party was being held.    A short time after he arrived, defendant

saw Owens and Hearn come to Traywood's house.   Paris Randle asked

to buy drugs from Owens, but Owens was not able to sell him any

on the spot.   Owens kept a supply of drugs at the house of a

girlfriend who had recently evicted Owens from her premises.
Defendant refused Owens' request to go to the girlfriend's house

and retrieve Owens' stash of cocaine, after which Owens and Hearn

left the party and managed to get inside the girlfriend's house

to retrieve the drugs.   Defendant indicated that Owens went to

Hearn's house and stashed his drugs somewhere on that property.

Defendant went from the party on 6th Street to Buck's Tavern,

where the police eventually came and chased away a group that was

standing outside the tavern.   Defendant again met up with Korey

Randle as he walked away from Buck's Tavern, and together they

drove in the Windstar to defendant's mother's house.    While the
two were hanging around there, at midnight or 1 a.m. on September

15, Owens and Hearn drove up in a gray Monte Carlo.    Defendant

and Randle then drove the minivan to a Quick Shop store, where

they intended to buy more alcohol.    Hearn and Owens also went to

Quick Shop and the four men purchased cigars and alcohol.    Both

vehicles were driven from Quick Shop to Angela Lee's residence on

                                  9
9th Avenue.   Ultimately, the four men later left in the minivan

and drove to 513 6th Avenue, where Hearn lived.   According to

defendant, Owens and Hearn left the Monte Carlo at Lee's

residence and got in the van with the defendant and Korey Randle.

     Describing what took place immediately prior to the

shooting, defendant said Owens received a call from someone who

was ready to buy some drugs.   Owens exited the van to find the

stashed cocaine and returned when he could not find the drugs in
the spot he had hidden it.   When Owens exited the van to try to

find the cocaine, defendant went to the side of Hearn's house to

urinate.    Defendant said that he was still urinating when Owens

returned to the van, cussing at Hearn about the missing drugs.

Owens reached under the mat of the minivan and pulled out a gun,

which he then used to shoot at Hearn.   Defendant stated Hearn was

still inside the van when Owens began shooting.   Defendant had

just returned to the van and jumped in the middle seat when Owens

pointed the gun toward Hearn and fired a few shots.   As soon as

Owens began shooting, Korey Randle, who was seated in the fully
reclined front passenger seat, exited the van and ran away.

Hearn got out of the van and began to wrestle with Owens, at

which time Owens shot Hearn two more times.   According to the

defendant, Hearn managed to gain control of the gun from Owens

and, as Owens tried to get in the driver's seat of the van, Hearn

shot him.   Defendant said Hearn began shooting at the defendant

                                 10
after Hearn shot Owens.    This caused defendant to flee.   He

caught up with Korey Randle and the two left the area together.

         II. Information Defendant Provided In June Statement
                 As Testified To By Detective Sullivan

     Defendant provided further details about the shooting during

his interview with the police on June 4, 2004.    He indicated that

while he was with the others in the van as it was parked in

Hearn's driveway, Owens and Randle were sitting in the front
seats, defendant was in the middle seat and Hearn sat in the far

rear seat.    In the June interview, defendant mentioned the name

of the person who had called Owens' cell phone about buying

drugs.    Defendant described Owens as angry with Hearn after he

looked for but could not find the cocaine allegedly hidden on the

property at Hearn's residence.    Defendant said that even after he

left the van to urinate, he was in a position where he could see

and hear what was happening inside the van.    Owens was accusing

Hearn of stealing the drugs because Hearn was the only person,

other than Owens, who knew where the drugs had been hidden.

     Detective Sullivan continued his testimony by noting that
defendant was asked specifically if anyone other than the four

people in the minivan were in the area at the time of the

shooting, to which defendant indicated the only other person

nearby was a person he called "Molina."    Molina was at the park

waiting for Owens to deliver drugs to him.    Defendant said that


                                  11
he thought two or possibly three shots were fired while Owens and

Hearn were inside the van and another two shots were fired

outside the van.   Once Owens and Hearn were outside the van

wrestling, Hearn obtained control over the gun and pursued Owens

around the van from the passenger side to the driver's door.

Hearn came up from behind Owens just before shooting Owens in the

head at close range.    Defendant told the police that Hearn

dropped the gun he used to shoot Owens, pulled a different gun,
and started to shoot at defendant and Korey Randle.     When

Detective Sullivan asked defendant how Randle could have been

shot at by Hearn when he had fled as soon as the first shot was

fired, defendant stated that he was the only one Hearn was

shooting at after Owens had been shot.    Sullivan asked defendant

if he knew who Ricky Childs was and whether Childs was present at

the time of the shooting.    Defendant said he knew Childs, but

that Childs was not present.

     On cross-examination, Detective Sullivan conceded that

defendant had, at no time during any of his statements, admitted
to shooting anyone.    The detective testified that, despite the

efforts by his department, the police were unable to find Korey

Randle.   Detective Sullivan also admitted that the police have

never discovered a weapon that could be tied to this case.

              III. Further Evidence Admitted At Trial

     Dr. Larry Blum testified that he is a licensed physician

                                 12
whose specialization is in forensic pathology.    He was declared

an expert in his field and testified that he performed the

autopsy on Owens.   Dr. Blum stated that Owens died as a result of

a single gunshot that entered his brain after passing through his

right ear.   In the doctor's opinion, the shot was fired from

within inches of Owens' ear and death would have resulted

rapidly, if not immediately, after the bullet struck.

     Christopher Kozel, a forensic scientist employed by the
Illinois State Police, testified as an expert in firearm and tool

marker identification.    Kozel received a number of clothing items

that were worn by Hearn at the time he was shot.    He identified

certain holes in the jacket Hearn wore as having been caused by

bullets that struck the jacket in the back right shoulder, and

two places where the initial entry point was through the interior

fabric of the jacket.    Each of these three entry points

manifested gunpowder residue, indicating a close-range firing of

the gun.

     Kozel gave his opinion regarding the type of gun that he
determined was consistent with the rifling characteristics of the

two bullets that were recovered in this case.    According to

Kozel, the pattern and directions of the grooves on the bullets

matched those that are made by a semiautomatic pistol

manufactured by "High Point."    Kozel testified that, in his

experience, the shells that are ejected from the "High Point"

                                 13
brand 9-millimeter pistol always eject to the right side.       Kozel

confirmed that he had also made a determination that the six

shells found at the crime scene matched each other and were all

fired from the same gun.

       On cross-examination, Kozel testified that he did not

perform tests on the sleeves or cuff areas of Hearn's jacket for

gun powder residue, but that a colleague of his had.     While Kozel

matched all of the shell casings and bullets submitted to him to
a single 9-millimeter pistol, he could not testify that all of

the bullet wounds Hearn suffered were caused by a 9-millimeter

gun.

       Robert Berk, also a forensic scientist employed by the

Illinois State Police, testified that his expertise is in the

area of analyzing trace evidence.     His testing on the cuff

portion of the left sleeve of Ronald Hearn's jacket led Berk to

conclude that gunshot residue was present on that part of the

jacket.    This meant that Hearn's cuff was "in the environment of

a weapon" when the weapon was fired, and could have been the
result of Hearn discharging a weapon or having his left hand

close to a gun when someone else fired it.     Berk was able to

conclude that no gunshot residue was present on either of the

sleeves of the jacket worn by Owens.

       When the jury trial resumed on September 29, 2004, Detective

Metscaviz was recalled to the stand.     His testimony was limited

                                 14
to an interaction that he observed between defendant and Korey

Randle.    This interaction took place while Randle was being

interviewed by Detective Metscaviz in a room at the county jail.

During the interview with Randle, the defendant, who had been

arrested about a month earlier, was walking by the interview room

and made a statement that Detective Metscaviz was able to hear.

Looking at Randle, defendant said, "Yo, man.    Those guys are

trying to frame me."    Metscaviz interpreted that defendant was
directing that comment at the officer or to his department in

general.    Then, looking in the direction of the detective,

defendant said, "What are you doing talking to those guys?"

Before moving out of the view of Randle and Detective Metscaviz,

defendant raised his hands and moved a forefinger across his

throat.    Defendant's movement was observable to Randle.

     Angela Lee was called to testify and noted that she had been

asleep at her home on 9th Avenue in Rock Island early in the

morning on September 15, 2003, when her nephew, Ronald Hearn,

woke her up by yelling her name from just outside the back door
to her house.    She turned over on the couch to look toward the

back door and saw Hearn leaning against the doorway.    Hearn

stated he had been shot.    After she helped her nephew get outside

to wait for the emergency personnel to arrive, she began asking

Hearn who shot him.    At first Hearn told Lee, "Roy shot," but

when Lee asked him if he meant Roy was the shooter, Hearn said

                                 15
no, and repeated the words, "Roy shot."   When Lee asked Hearn to

tell her "who did this to [him]," Hearn pulled her close to him

and said the words, "Steve, and Korey was with him."   Lee

testified that her nephew made the statements before any officers

arrived at her house.

     Defendant called Steve Lisle, Sr., as his first witness.

Lisle, Sr., testified that defendant and Owens had been good

friends for at least six years, that they were together all the
time, and that they spent many nights at the same house.     Lisle,

Sr., could not think of any reason his son would have had to

shoot Owens.   Lisle, Sr., also denied that he had told anyone

that defendant had asked for the phone number of the sister that

lives in Indianapolis, Indiana, when defendant called Lisle, Sr.,

at 4:30 a.m. on the morning Owens was shot.

     Defendant's mother, Jessie Lisle, testified that she was at

her home on a corner lot at 7th Street and 7th Avenue, throughout

the night on September 14.    Defendant came to and left the house

a number of times throughout the night.   Jessie testified that
she was still awake at around 3:40 a.m. and sitting on her front

porch when she heard what sounded like firecrackers.   Before she

could place a call to try to reach her son, she saw defendant

calmly walking by himself toward the house.   She told defendant

not to be returning with Owens to the house later that night,

since it would wake her up.   Defendant assured her that he would

                                 16
not be coming back to the house that night and she had no further

contact with him the rest of the night.

       After defendant rested with no further witnesses being

called, the State called Detective Metscaviz as a rebuttal

witness.    The detective testified that, while he was questioning

Steve Lisle, Sr., and Jessie Lisle at Jessie's house on 7th

Street on the day the shooting, Lisle, Sr., stated that at

approximately 4:30 that morning defendant had placed two calls to
him.    Lisle, Sr., indicated that defendant was asking for the

phone number of Lisle, Sr.'s daughter, Steva, who lived in

Indianapolis.    The detective testified that Lisle, Sr., also said

defendant had told him that he needed Steva's phone number

because he was going to have to leave town.    After this

testimony, both sides rested and the trial court denied

defendant's renewed motion for a directed verdict.

       After deliberating for parts of two days, the jury found

defendant guilty of first degree murder and the charge of

aggravated battery.    Following a sentencing hearing on December
10, 2004, the trial court sentenced defendant to terms of 27 and

10 years' imprisonment, specifically finding that the sentences

were required to run consecutively to one another.    This appeal

followed.

                              ANALYSIS

       Defendant raises three issues on appeal.   First, defendant

                                 17
contends that the trial court erred in allowing Angela Lee to

testify that Ronald Hearn told her that defendant was the one who

shot him.   Defendant claims that it was reversible error to find

Hearn's statement admissible under the excited utterance

exception to the hearsay rule.   Second, defendant further argues

that allowing Lee to testify as to what Hearn said violated his

federal and state constitutional rights to confront witnesses

against him, as well as the principles set forth in Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354

(2004).   Finally, defendant argues that evidence adduced at trial

was insufficient to find him guilty beyond a reasonable doubt for

the murder of LaRoy Owens.

                       I. Excited Utterance

     Angela Lee testified that Ronald Hearn identified defendant

as the person who shot him.   Defendant claims Lee's testimony

should not have been admitted under the excited utterance

exception to the hearsay rule and, therefore, Lee's testimony

should have been excluded as inadmissible hearsay.
     For a hearsay statement to be admissible under the

spontaneous declaration or excited utterance exception: (1) there

must be an occurrence sufficiently startling to produce a

spontaneous and unreflecting statement; (2) there must be an

absence of time for the declarant to fabricate the statement; and

(3) the statement must relate to the circumstances of the

                                 18
occurrence.     People v. Edwards, 144 Ill. 2d 108, 579 N.E.2d 336

(1991).   In determining whether a hearsay statement is admissible

under the spontaneous declaration exception, courts employ a

totality of the circumstances analysis.     People v. Williams, 193

Ill. 2d 306, 739 N.E.2d 455 (2000).    This analysis involves the

consideration of several factors, including time, the nature of

the event, the mental and physical condition of the declarant,

and the presence or absence of self-interest.     People v. House,
141 Ill. 2d 323, 566 N.E.2d 259 (1990).

     The fact that a declarant's statement is made at the first

opportunity to speak supports a finding of spontaneity (People v.

Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146 (1988)), but a declarant

may make a spontaneous declaration to a person even after having

spoken previously to another.     House, 141 Ill. 2d at 386.

 "Although a statement made in response to persistent

interrogation might not be admitted under the spontaneous

declaration exception [citation], the fact that a statement was

made in response to a question does not necessarily destroy
spontaneity."     Williams, 193 Ill.2d at 353, citing People v.

Smith, 152 Ill. 2d 229, 604 N.E.2d 858 (1992).    No one factor is

dispositive.     Williams, 193 Ill. 2d at 353.

     The time factor has been described as an elusive factor

whose significance will vary with the facts of each case.      House,

141 Ill. 2d at 382.    "[T]he period of time that may pass without

                                  19
effecting the admissibility of a statement under the spontaneous

declaration exception varies greatly."      Williams, 193 Ill. 2d at

353.    In People v. Gacho, a statement made 6½ hours after the

occurrence was held admissible (Gacho, 122 Ill. 2d at 240-42),

while in People v. Newell, a statement made 20 minutes after the

occurrence was properly excluded.      People v. Newell, 135 Ill.

App. 3d 417, 481 N.E.2d 1238 (1985).

            "The critical inquiry is 'whether the statement
            was made while the excitement of the event

            predominated.'"   Williams, 193 Ill. 2d at 353.

       We review evidentiary rulings of a trial court deferentially

and will reverse only if the trial court abused its discretion.

People v. Sullivan, 366 Ill. App. 3d 770, 853 N.E.2d 754 (2006).

A trial court abuses its discretion when its ruling is so

arbitrary, fanciful, or unreasonable that no reasonable person

would take the view it adopted.     People v. Illgen, 145 Ill. 2d

353, 583 N.E.2d 515 (1991).

       Defendant admits, "There is no question" that the shooting
was a sufficiently shocking event to cause Hearn to make an

"excited and unreflecting statement."     Defendant further concedes

that Hearn's statement, as testified to by Lee, bore a direct

relation to the circumstance of the shooting.     Defendant argues,

however, that the statement was admitted in error.     Defendant

claims that the trial court failed to properly weigh the

                                  20
intervening time between the shooting and the statements.

Defendant continues that since the statement was the product of

Lee's "questioning," it was not truly an excited utterance and

should have been deemed inadmissible hearsay.   We disagree.

     At most, 18 minutes passed between the shooting and Hearn's

statement to Lee.   Hearn was shot five times, each bullet

entering his body and exiting it.    While his statements followed

his aunt's inquires into who shot him, we find that fact
insufficient to defeat the spontaneous nature of the statement.

Undoubtedly, the statement was made while the excitement of the

event predominated.   The statement bore a direct relation to an

unbelievably shocking occurrence.    Therefore, we cannot say that

the trial court abused its discretion in holding Lee's testimony

was permissible under the excited utterance exception to the

hearsay rule.

     II. Right to Confront Witnesses, Testimonial Evidence
                   and Crawford v. Washington

     Defendant's second argument on appeal is that the trial

court violated his right to confront witnesses against him by
allowing Lee to testify about Hearn's statement.   Defendant notes

that both the state (Ill. Const. 1970, art. I, §8) and federal

(U.S. Const., amend. VI) constitutions provide a criminal

defendant the right to confront the witnesses against him.

Citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177,


                                21
124 S. Ct. 1354 (2004), as authority, defendant claims it was

improper to allow Lee's testimony claiming Hearn's statement was

testimonial and not subject to cross-examination.

     The State responds by arguing that Hearn's statement was not

testimonial and, as such, Crawford v. Washington is inapplicable.

In the alternative, the State contends that even if we find the

statement to be testimonial in nature, Crawford does not preclude

its admission since the statement falls within recognized common
law exceptions to the hearsay rule.   Finally, the State concludes

its response on this issue by claiming admission of the statement

was, at most, harmless error.

     Since the Supreme Court issued its decision in Crawford,

courts have struggled with determining exactly which statements

are testimonial in nature and which are nontestimonial.    In re

T.T., 351 Ill. App. 3d 976, 815 N.E.2d 789 (2004); People v.

R.F., 355 Ill. App. 3d 992, 825 N.E.2d 287 (2005); People v.

West, 355 Ill. App. 3d 28, 823 N.E.2d 82 (2005); People v.

Purcell, 364 Ill. App. 3d 283, 846 N.E.2d 203 (2006).   A review
of recent case law in our appellate districts indicates that

there exist two developing theories regarding how to determine if

a statement is testimonial in nature.

     In People v. R.F., one panel of the First District held that

"Crawford does not apply to statements made to nongovernmental

personnel, such as family members or physicians.    When an out-of-

                                22
court statement is made to nongovernmental personnel and, thus,

is nontestimonial, the 'indicia of reliability' framework of Ohio

v. Roberts, and the hearsay exception *** continue to apply."

People v. R.F., 355 Ill. App. 3d at 1000.    This line of reasoning

was endorsed by the dissent in In re E.H., 355 Ill. App. 3d 564,

823 N.E.2d 1029 (2005), rev'd on other grounds by In re E.H., No.

100202 (December 21, 2006).    In his dissent, Justice Quinn noted

that, "The great weight of authority supports the proposition
that where the proffered statements were not made to a

governmental actor such as law enforcement (or their proxy),

under Crawford the statements cannot be testimonial regardless of

their content."     In re E.H., 355 Ill. App. 3d at 580 (Quinn, J.,

dissenting).

     A competing school of thought developing in our courts is

that statements made to nongovernmental personnel can be

testimonial in nature.    The court in In re T.T. acknowledged

that, "Crawford indicates that governmental involvement in some

fashion in the creation of a formal statement is necessary to
render the statement testimonial in nature."     In re T.T., 351

Ill. App. 3d at 988.    Nevertheless, the court went on to find

that the victim's "accusatory statements identifying respondent

as the perpetrator" made to a private physician were testimonial

in nature.     In re T.T., 351 Ill. App. 3d at 993.   Focusing on the

content of the statement rather than to whom it was made, the

                                  23
Purcell court followed the lead set by In re T.T. stating that

"when the content of the victim's statement concerns fault or

identity, such a testimonial statement is admissible only if the

declarant testifies at trial and is subject to cross-

examination."   Purcell, 364 Ill. App. 3d at 297.    The Purcell

court then sanctioned the view adopted by the In re T.T. court

and held that when determining whether a statement is testimonial

or nontestimonial in nature, a court should focus "on the nature
of the testimony rather than the official or unofficial status of

the person whom the State called to testify to the declarant's

out-of-court statement."   Purcell, 364 Ill. App. 3d at 297.

     In People v. Stechley, 225 Ill. 2d 246 (2007), our supreme

court noted that the United States Supreme Court has "left for

another day any discussion of rules for evaluating 'whether and

when statements made to someone other than law enforcement

personnel' [citation] or statements 'made in the absence of any

interrogation' [citation] might be 'testimonial.'"     Stechley, 225

Ill. 2d at 289-90.   Then, our supreme court held that statements
made to someone other than law enforcement personnel or

government officers can be testimonial in nature.     Stechley, 225

Ill. 2d at 291-92.

     In answering the question of "how to determine whether

statements are testimonial when they are made outside" of police

interrogation, the Stechley court stated, "[T]he only proper

                                24
focus is on the declarant's intent: Would the objective

circumstances have led a reasonable person to conclude that their

statements could be used against the defendant?"   Stechley, 225

Ill. 2d at 289.   The Stechley court continued that, "[I]t is the

declarant's perspective which is paramount in a testimonial

analysis. *** Accordingly, in our view, the proper question is

not whether the declarant actually did intend or foresee that his

statement would be used in prosecution.   Rather, the question is
whether the objective circumstances indicate that a reasonable

person in the declarant's position would have anticipated that

his statement likely would be used in prosecution."    Stechley,

225 Ill. 2d at 292.

     Using the test announced by our supreme court in Stechley,

and Davis v. Washington, 547 U.S. ____, 165 L. Ed. 2d 224, 126 S.

Ct. 2266 (2006), as our guide, we hold Hearn's statement to Lee

was not testimonial in nature.   In Davis, the Supreme Court held

that statements made to a law enforcement official during the

course of a 911 call were not testimonial in nature.   Davis, 547
U.S. at ____, 165 L. Ed 2d at 240-41, 126 S. Ct. at 2277.   This

was so, reasoned the Davis Court, since the declarant made the

statements during an ongoing emergency.   Davis, 547 U.S. at ____,

165 L. Ed. 2d at 237-38, 126 S. Ct. at 2274.   The Davis Court

noted that while "one might call 911 to provide a narrative

report of a crime absent any imminent danger [the declarant's]

                                 25
call was plainly a call for help against a bona fide physical

threat."   (Emphasis in original.)    Davis, 547 U.S. at ___, 165 L.

Ed. 2d at 240, 126 S. Ct. at 2276.     The Davis Court further noted

that identifying one's assailant does not, in and of itself,

render that statement testimonial in nature.     Davis, 547 U.S. at

___, 165 L. Ed. 2d at 240-41, 126 S. Ct. at 2276-77.     The Davis

Court stated:

           "Third, the nature of what was asked and answered
           in Davis, again viewed objectively, was such that

           the elicited statements were necessary to be able

           to resolve the present emergency, rather than

           simply to learn (as in Crawford) what had happened

           in the past.   That is true even of the operator's

           effort to establish the identity of the assailant,

           so that the dispatched officers might know whether

           they would be encountering a violent felon."

           (Emphasis in original.)    Davis, 547 U.S. at ___,

           165 L. Ed. 2d at 240, 126 S. Ct. at 2276.
     Just as the declarant in Davis, Hearn was in need of

protection from his assailant when he made the statement to Lee.

He was also in dire need of medical attention.    Had Hearn made

the exact same statement to a 911 operator, Davis would mandate

that we find the statement nontestimonial in nature.     Using the

Stechley "objective circumstances" test, we find that a

                                 26
reasonable person shot five times who has just made his way to

his aunt's house and who has not received protection from his

assailant or medical attention would not have anticipated that

the statement to his aunt would be used in prosecution.   He

would, undoubtedly, have anticipated that identifying his

assailant to his aunt would allow his aunt to take precautionary

measures should the assailant also arrive at her residence.

Therefore, Hearn's statement to Lee was nontestimonial in nature.
     Courts agree that when an out-of-court statement is found to

be nontestimonial, the "indicia of reliability" framework set

forth in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S.

Ct. 2531 (1980), and traditional hearsay exceptions apply.

Purcell, 364 Ill. App. 3d at 294; R.F., 355 Ill. App. 3d at 1000.

Crawford clearly states that where "nontestimonial hearsay is at

issue, it is wholly consistent within the Framers' design to

afford the States flexibility in their development of hearsay

law-as does Roberts, and as would an approach that exempted such

statements from Confrontation Clause scrutiny altogether."
Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at

1374.

     As noted in section 1 above, Hearn's statement to Lee falls

squarely within this state's excited utterance exception to the

hearsay rule.   Defendant argues, however, that even if we find

the statement to be nontestimonial and no Crawford violation, it

                                27
was still reversible error to admit it.    Defendant claims that

his right to confrontation was still violated as Hearn was not

"unavailable," yet his statement was allowed to be introduced

into evidence without Hearn being called to testify.    Defendant

notes that Hearn was incarcerated at the time of the trial.

Therefore, defendant claims that the State impermissibly

circumvented his right to confrontation by introducing his

statement to Lee while holding him in confinement.    For authority
supporting the conclusion that this amounted to reversible error,

defendant cites Justice Thomas's dissenting opinion in Davis v.

Washington, 541 U.S. at ____, 165 L. Ed. 2d at 244, 126 S. Ct. at

2280 (Thomas, J., dissenting), and Barber v. Page, 390 U.S. 719,

20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968).

     Defendant's arguments concerning the "availability" of Hearn

are unavailing.   It is true that the Barber Court held the State

violated the defendant's right to confrontation when it was

allowed to admit hearsay statements of someone incarcerated in a

federal penitentiary without attempting to secure the declarant's
presence at trial.   Barber, 390 U.S. at 725, 20 L. Ed. 2d at 260,

88 S. Ct. at 1322.   The statements made by the declarant in

Barber, however, were made during a preliminary hearing in which

the defendant was afforded no meaningful opportunity of cross-

examination.   Barber, 390 U.S. at 725, 20 L. Ed. 2d at 260, 88 S.

Ct. at 1322.   Undoubtedly, the statements at issue in Barber were

                                28
testimonial in nature and, therefore, pursuant to Crawford, could

only be admitted today if the defendant were allowed a meaningful

opportunity to cross-examine the declarant.    But, to read Barber

to hold, as defendant urges, that no hearsay statements are ever

admissible if the declarant is incarcerated, or otherwise

"available," is an untenable expansion of Barber which ignores

other, more recent United States Supreme Court jurisprudence.

     In White v. Illinois, 502 U.S. 346, 116 L. Ed. 2d 848, 112
S. Ct. 736 (1992), the Court held that our supreme court

correctly decided that the confrontation clause does not demand

that "the prosecution must either produce the declarant at trial

or the trial court must find that the declarant is unavailable"

before admitting hearsay statements under the spontaneous

declaration exception to the hearsay rule.    White, 502 U.S. at

349, 116 L. Ed. at 854-55, 112 S. Ct. at 739.     This is so,

reasoned the White Court, because "where proffered hearsay has

sufficient guarantees of reliability to come within a firmly

rooted exception to the hearsay rule, the Confrontation Clause is
satisfied."    White, 502 U.S. at 356, 116 L. Ed. 2d at 859, 112 S.

Ct at 743.    The Court specifically rejected an "unavailability

rule" pertaining to spontaneous declarations and noted, "We ***

see no basis *** for excluding from trial, under the aegis of the

Confrontation Clause, evidence embraced within such expectations

to the hearsay rule as those for spontaneous declarations."

                                 29
White, 502 U.S. at 357, 116 L. Ed. 2d at 860, 112 S. Ct. at 743.

Given the holding of White, we reject defendant's argument that

his rights under the confrontation clause were violated when the

State was allowed to introduce Hearn's excited utterance through

Lee's testimony while Hearn was "available" to testify.

                III. Sufficiency of the Evidence

     Defendant's final issue raised on appeal is that the

evidence adduced at trial was insufficient to convict him of the
first degree murder of Owens.   He argues that, at best, the

evidence indicates that he was the "most likely suspect, in the

shooting of Owens," but it is totally circumstantial and fails to

sufficiently prove he actually shot Owens.   Defendant does not

challenge his aggravated battery conviction on these grounds.

     When reviewing a claim of insufficient evidence, the

reviewing court must determine whether, after viewing the

evidence in the light most favorable to the State, any rational

trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.   People v. Smith, 185 Ill. 2d
532, 541, 708 N.E.2d 365, 369 (1999).   It is not the function of

a court of review to retry the defendant.    People v. Collins, 106

Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985).

     Evidence was admitted at trial indicating that defendant

initially informed police that he had no involvement in the

shooting and was not at the scene during the time of the

                                30
shooting.    Defendant later recanted that story and informed

police that he was, in fact, at the scene when the shooting took

place.   In describing what took place during the incident,

defendant told police that Owens shot Hearn three times while

Hearn was in the backseat of the van and Owens was in the

driver's seat.    Once the first shot was fired, according to

defendant, Randle took off running.     Defendant was clear that

only the four men were at the scene when the first shot was fired
and only Hearn, Owens and defendant remained after the first shot

was fired.

     According to defendant, after Hearn was shot three times in

the van, he exited the vehicle and chased Owens.    During the

chase, he was shot two more times.    Hearn, then, after being shot

five times, caught up to Owens, wrestled the gun away from him,

and killed him almost instantaneously with a single shot.

     Medical and forensic experts testified that the shooting

simply could not have happened as defendant described.    Hearn was

not shot in the van, did not chase Owens, and did not struggle
with Owens for the gun.    Testimony indicated that Owens was found

dead holding a cigarette and lighter in one hand.    For the jury

to believe defendant's version of the events, it would not only

have to ignore all the physical evidence (as testified to by the

various forensic experts) from the incident but also somehow

conclude that Owens continued to hold a cigarette and lighter in

                                 31
one hand as he struggled over a gun with a man he had just shot

five times.   Moreover, the jury would have had to believe that

Hearn, having just been shot five times, had the strength to

chase down Owens, take the gun from him, and shoot him.

     Defendant argues that proving he lied about the way events

transpired does not equate to proving all the elements of an

offense beyond a reasonable doubt.     We agree.   Defendant admits

the corpus delicti of the murder of Owens was proven by the
State, but contends that the State failed to offer sufficient

evidence to prove he was responsible for or committed the murder

of Owens.   We disagree.

     The State introduced defendant's own statement in which he

admitted that only Randle, Owens, Hearn, and he were at the scene

when the first shot was fired.     A video surveillance tape

confirmed that the four men were together approximately one hour

prior to the shooting.     Defendant stated Randle did not fire the

first shot and took off running after it was fired.     This left

Hearn, Owens, and defendant as the only people at the scene of
the crime when the remaining five shots were fired.     Witnesses

Nimmers and Dixon testified that they heard one shot fired,

followed a short time later by five rapidly fired gunshots.

     No gunshot residue was found on the sleeves of Owens' jacket

indicating that he did not fire even a single shot, let alone

five shots into Hearn.     The physical evidence and witness

                                  32
testimony certainly supports the State's theory that the first

shot heard by Nimmers and Dixon was the single fatal shot fired

into Owens and the five subsequent clustered shots were those

which struck Hearn.   Adding Hearn's statement that defendant was

the shooter, we find sufficient evidence upon which a reasonable

trier of fact could have relied to conclude that all the elements

of the offense of murder were proven beyond a reasonable doubt.

                            CONCLUSION
     For the foregoing reasons, the judgment of the circuit court

of Rock Island County is affirmed.

     Affirmed.

     O'BRIEN and WRIGHT, JJ., concur.




                                33
