                                                2016 IL App (1st) 130988
                                                       No. 1-13-0988
                                                    September 15, 2016
                                                                                FOURTH DIVISION

     ______________________________________________________________________________

                                                           IN THE

                                         APPELLATE COURT OF ILLINOIS

                                                     FIRST DISTRICT

     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS,              ) Appeal from the Circuit Court
                                                       ) of Cook County.
           Plaintiff-Appellee,                         )
                                                       )
     v.                                                )
                                                       ) No. 09 CR 613
     CARL McCOY,                                       )
                                                       )
           Defendant-Appellant.                        ) The Honorable
                                                       ) Diane Gordon Cannon,
                                                       ) Judge presiding.
     _____________________________________________________________________________

            JUSTICE BURKE delivered the judgment of the court, with opinion. ∗
            Justice Lampkin concurred in the judgment and opinion.
            Justice Gordon specially concurred, with opinion.

                                                          OPINION

¶1          Following a jury trial, defendant, Carl McCoy, was convicted of the first degree murder

     of Woodrow Culverson and sentenced to 50 years in prison. He appeals, arguing (1) the State

     failed to prove him guilty beyond a reasonable doubt; (2) the State committed reversible error by

     asking during cross-examination whether he threatened to kill Culverson’s family if Culverson

     told police that defendant shot him, where the State had no basis to ask that question and there
            ∗
                This case was recently reassigned to Justice Burke.
     1-13-0988


     existed no possibility of proving up that accusation; (3) the trial court should have admitted

     statements Culverson made to a paramedic on the scene as either dying declarations or excited

     utterances; and (4) the court erred by allowing the State to use defendant’s prior attempted first

     degree murder conviction for impeachment purposes.

            We agree with defendant that the State’s improper accusation during cross-examination

     and the admission of defendant’s prior attempted murder conviction were reversible errors.

     Because we find the evidence was sufficient to sustain defendant’s conviction such that retrial

     would not violate the double-jeopardy clause, we reverse and remand for a new trial.

¶2                                          I. BACKGROUND

¶3                                                 A. Pretrial

¶4          In December 2008, a grand jury returned an indictment charging defendant with, inter

     alia, the first degree murder of Culverson.

¶5          Prior to trial, defendant filed a motion in limine seeking to admit statements that

     Culverson made to Chicago fire department paramedic Heather Spalliero as dying declarations or

     statements made for the purpose of medical diagnosis or treatment. Defendant’s motion alleged

     that Spalliero treated Culverson at the accident scene and when she asked Culverson if he had

     been shot, he said no. She then asked if the driver shot him, and Culverson said no.

¶6          At an initial hearing on the motion, defense counsel explained that case law regarding

     dying declarations established that “[i]f the declarant believes that they are in dire health about to

     die and they make a statement, the truthfulness of the statement is such it should come in under

     [the] hearsay exception.” The trial court responded as follows, “I understand. In this case we

     have the opposite. Not only did he not think he was shot, what makes you think that he felt he

     was going to die if he didn’t even admit that he was shot?” Counsel acknowledged that


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     Culverson’s apparently incorrect response to the first question posed “a bit of a problem.”

     However, counsel posited Culverson could have believed he was dying based not only on the

     shooting but also on the fact that he was in a bad car accident. The court initially denied

     defendant’s motion. However, defense counsel asked the court to reserve its rulings for counsel

     to bring emergency medical technician (EMT) Spalliero to court to testify, and the court agreed.

¶7           At a later hearing, Spalliero testified that she came into contact with a car accident on

     6440 South Martin Luther King Drive on August 30, 2008. She did not have an independent

     recollection of her encounter, but she reviewed her report before testifying. In her report,

     Spalliero indicated that Culverson was alert and oriented to person when she came into contact

     with him. Her report indicated that Culverson had gunshot wounds in his lower abdomen. His

     breathing became labored, and he complained that he could not breathe. Spalliero asked

     Culverson whether he had been shot, and he said no. 1 Spalliero administered cardiopulmonary

     resuscitation (CPR), and Culverson lost consciousness about 11 minutes after Spalliero came

     into contact with him. The State asked Spalliero the following question: “And you never told Mr.

     Culverson that he was going to die soon, did you?” to which Spalliero responded, “There’s no

     way I can know that for sure.” Spalliero testified Culverson never told her that he thought he was

     going to die soon.

¶8           The trial court denied defendant’s motion in limine, finding Culverson’s statements did

     not fall into the dying declaration exception, as Culverson was alert and oriented and died after

     being placed in the ambulance. The court also found the statements did not fall into the excited

     utterance exception because Culverson made his statements in response to Spalliero’s questions.
             1
              We note that defense counsel did not ask Spalliero about Culverson’s statements. On cross-
     examination, the State elicited from Spalliero that when she asked Culverson if he had been shot, he said
     no. However, Spalliero was not asked whether she asked Culverson if the driver shot him. Nonetheless,
     the State did not dispute in the trial court, nor does it dispute on appeal, that Spalliero asked Culverson
     whether the driver shot him and he responded, “no.”
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       Furthermore, the court stated, “the reliability [was] questioned” because Culverson had an

       obvious gunshot wound to his abdomen and was either unsure of the question or was unaware of

       the fact that he had been shot. The court stated it did “not believe that there is reliability, nor is

       there a situation where the statements were made to assist the police in their investigation of

       getting a known offender off the streets.”

¶9            Also prior to trial, the State filed a motion to allow proof of defendant’s prior attempted

       murder conviction, for which defendant received a 10-year prison sentence in 1999, for

       impeachment purposes. Defendant objected, arguing the jury should hear only that he was a

       convicted felon but not that his conviction was for attempted murder. Stating that it had weighed

       the probative value of the evidence versus its prejudicial effect, the court ruled that if defendant

       elected to testify, his conviction could be introduced as a conviction of attempted first degree

       murder.

¶ 10                                                 B. Trial

¶ 11          In December 2012, defendant’s jury trial commenced.

¶ 12                                        1. The State’s Evidence

¶ 13          Linnetta Culverson testified that she and Culverson were married for seven years.

       Culverson owned a 2002 pearl white Park Avenue, which he loved. Linnetta, Culverson, and

       Culverson’s sister, Laytunya, attended a party at a family member’s home on August 30, 2008.

       Culverson “did a little drinking.” The three left the party at around 8 p.m. in Culverson’s Park

       Avenue. Culverson dropped Linnetta off first at their home at 5313 South Wallace Street. He

       then departed in his car at around 8:20 p.m. to take Latunya home. Linnetta thought Culverson

       intended to return home after dropping off Latunya. When asked whether she believed that

       Culverson was going to his brother’s party after taking Latunya home, Linnetta said she “wasn’t


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       aware of it.” Linnetta did not notice anything unusual about the way Culverson was acting or

       driving. She had never met defendant and did not know whether Culverson knew defendant.

¶ 14              Latunya Culverson testified that Culverson dropped her off at her home at 827 East

       Bowen Avenue at around 9 p.m. on August 30, 2008. After walking Latunya inside and talking

       to Latunya’s son, Antione, Culverson departed. Latunya believed that Culverson was planning

       on going to his brother’s home afterward. When asked where Culverson’s brother lived, Latunya

       responded, “62nd—I am not quite sure. I don’t know the direct address, but I know it is on

       Normal.” Latunya did not know whether Culverson knew defendant or ever let defendant drive

       his car.

¶ 15              Antione Thompson, Latunya’s son, likewise testified that he did not know whether

       Culverson knew defendant or ever gave him permission to drive his car. Culverson drove

       Latunya home on August 30, spoke to Antione, then departed. Thompson believed Culverson

       was going to his brother’s house.

¶ 16              Patience Mays testified that she was driving near 67th Street and Martin Luther King

       Drive at around 9:25 p.m. on August 30, 2008. From her rearview mirror, she saw a car run into

       a pole. The car had previously tried to pass her as she was driving along Martin Luther King

       Drive.

¶ 17              Mays made a U-turn and pulled up to the side of the car. Inside, she saw two men. One

       was sitting in the passenger’s seat and the other was getting out of the driver’s seat. The two men

       appeared to be conversing because their hands were moving as if they were talking. Mays did not

       hear the driver or the passenger screaming.

¶ 18              Mays asked the driver of the car whether he was okay, and he started retrieving items out

       of the car, like a jacket and a bottle. Mays did not see him grab or throw a gun. She also did not


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       see if anything was tucked into his waistband or if he had anything in the jacket he grabbed. The

       driver threw the bottle and told Mays that he was okay. Mays offered to call somebody. The

       driver instructed her not to call the police but to call the paramedics. Thereafter, the driver “took

       off running” toward a viaduct. The passenger of the car never screamed for help, and the driver

       never instructed Mays to tell the paramedics that the passenger had been shot.

¶ 19           After the driver ran away, Mays pulled over to the other side of the street and called 911.

       Mays drove away when the fire department arrived. She did not speak to the paramedics or

       police before leaving the scene.

¶ 20           The parties stipulated that if called to testify, deputy medical examiner Dr. Valerie

       Arangelovich would testify that she performed an autopsy on Culverson on August 31, 2008. She

       would testify that she observed two gunshot entrance wounds on the lower left side of his

       abdomen. She would opine that Culverson died of multiple gunshot wounds and that his manner

       of death was homicide. There was no evidence of close range firing with respect to either

       entrance wound. She would also note that Culverson had a laceration on the palm of his right

       hand.

¶ 21           Chicago police officer Joseph Bokuniewicz testified that he and his partner, Officer

       Adamski, received a call to go to the area of 6640 South Martin Luther King Drive at around

       9:30 p.m. At the scene, Bokuniewicz observed a light-colored Buick Park Avenue crashed into a

       light pole. Both air bags were deployed and blood was on the seats. No one was in the vehicle by

       the time Bokuniewicz arrived.

¶ 22           Forensic investigator David Ryan testified that he arrived at the scene at around 11:30

       p.m. He noticed a 2002 Buick Park Avenue that had struck a light pole. Ryan conducted a walk-




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       through of the scene, looking for firearm evidence or other physical evidence. Ryan’s partner

       also videotaped and photographed the scene.

¶ 23           Ryan testified that he and his partner recovered the deployed air bags from the driver’s

       side and passenger’s side. Ryan explained that skin cells can be obtained from deployed air bags.

       Ryan observed blood on the front passenger’s seat cushion, the front driver’s seat cushion, and

       the inside of the front passenger door panel. His partner swabbed the steering wheel and swabbed

       the blood from the seat cushions and interior front door panel. The two officers also processed

       the car for fingerprints. They did not conduct gunshot residue (GSR) testing because, after

       speaking with the detectives, there was no indication that any areas should be tested for GSR.

       Ryan would not expect to find GSR inside the car if a gun were fired from outside the vehicle.

       The officers also did not conduct GSR testing on Culverson’s hands. Ryan did not recover any

       cartridge casings or bullet fragments in the car. If a semiautomatic weapon or a gun with a clip

       were fired inside the car, Ryan would expect to see a casing unless the gun became jammed

       during firing.

¶ 24           Melissa Nally, a forensic scientist with the Illinois State Police crime lab and firearm

       identification expert, testified that she examined the bullet retrieved from Culverson’s body. The

       bullet was consistent with having been fired from a semiautomatic pistol.

¶ 25           Debra McGary, a forensic scientist with the Illinois State Police forensic science center

       and expert in the field of fingerprint identification, testified that only some of the latent prints she

       received were suitable for comparison. Those impressions were not made by defendant.

¶ 26           Debra Klebacha, a forensic scientist at the Illinois State Police forensic science center and

       expert in the area of forensic biology, testified that she swabbed the driver’s side air bag and

       preserved it for deoxyribonucleic acid (DNA) analysis. The parties stipulated that Ron Ryan, an


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       investigator with the Cook County State’s Attorney’s office, would testify that he obtained

       defendant’s DNA sample through a buccal swab. The parties further stipulated that Janice

       Youngsteadt, a forensic scientist in the forensic biology DNA section of the Illinois State Police,

       forensic sciences command who would be qualified as an expert in the field of forensic DNA

       analysis, would state that she compared defendant’s buccal swab to the DNA extracted from the

       driver’s side air bag and defendant could not be excluded from having contributed to the DNA

       sample found on the air bag. Katrina Gomez of the Illinois State Police forensic science center,

       an expert in the area of DNA analysis, also testified that she compared the DNA data from the air

       bag to defendant’s DNA data and determined defendant could not be excluded as having

       contributed to the major human DNA profile on the air bag.

¶ 27          Detective Brian Forberg testified that he and Detective James Butler were assigned to

       investigate Culverson’s homicide on August 30, 2008. On September 1, 2008, Forberg and his

       partner, Detective Kevin Eberle, drove the various routes that Culverson could have taken from

       his sister’s home at 827 East Bowman to the accident site. Each route took the officers

       approximately 20 to 25 minutes to drive. Forberg also reviewed the footage of seven to nine

       police observation device (POD) cameras along routes that Culverson could have taken from his

       sister’s home to the accident location from between 9 and 9:30 p.m. He did not see Culverson’s

       car on any of the cameras. However, Forberg testified that the cameras rotate, and thus, they

       cannot catch every portion of the street at a particular time.

¶ 28          On September 2, 2008, Mays provided Forberg with a physical description of the driver

       of the car. On September 26, 2008, Katrina Gomez told Forberg that she had obtained

       defendant’s DNA profile from the air bag. Thereafter, Forberg obtained a picture of defendant,

       which he showed to Culverson’s family members. None of them knew defendant.


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¶ 29          Forberg testified that he and Eberle interviewed Mays and showed her a photo array on

       November 13, 2008. The photo array included defendant’s photograph. Mays “tentatively

       identified” defendant but told Forberg and Eberle that she would feel more comfortable viewing

       defendant in a lineup. Mays viewed a lineup on November 21, 2008, and identified defendant as

       the person she saw exiting the driver’s side of Culverson’s car.

¶ 30          Forberg testified that he interviewed defendant on November 26, 2008. The State entered

       into evidence a video of Forberg’s interview with defendant and published it for the jury.

       Defendant denied knowing Culverson. When Forberg showed defendant a picture of a car that

       was the same year, make, and model of Culverson’s car, defendant denied ever being in the car.

¶ 31          Forberg acknowledged that he did not know the location or exact time of the shooting. He

       also did not know whether Culverson was shot inside or outside of his car. Forberg’s “operating

       belief,” however, was that Culverson was inside the car when he was shot. He also believed the

       shooter was not in the car when the shot was fired. If the shooter had been inside the car, Forberg

       would have expected to find evidence of close range firing on Culverson’s body or his clothes. In

       addition, the nature of Culverson’s injuries along the left side of his abdomen indicated that

       Culverson was in a position that Forberg thought was consistent with the blood smears as well as

       “trying to move away from the shooter.” As to the time of the shooting, Forberg explained that

       he knew Culverson was shot sometime between 9 and 9:30 p.m., based on what Culverson’s

       family had told him.

¶ 32                                       2. Defendant’s Evidence

¶ 33          The parties stipulated that if called to testify, Spalliero would testify that she responded to

       an accident at approximately 9:30 p.m. on August 30, 2008, and that when she first approached

       Culverson, she administered treatment, and Culverson was conscious during that treatment.


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¶ 34          Defendant testified that he was drinking with some friends near 47th Street and

       Vincennes Avenue during the late afternoon or early evening hours of August 30, 2008. They

       were drinking and hanging out for about an hour and a half or two hours at the home of Josh,

       whose last name defendant did not know. The other two friends were named Izo and Big Pawn;

       defendant did not know Izo’s last name and only knew Big Pawn by his nickname.

¶ 35          Defendant testified that he started walking to the train station on 47th Street between

       Calumet Avenue and Prairie Avenue at around 8:40 or 9 p.m. to go to a reggae club at 66th

       Street and State Street. When he got off the train at 63rd Street and Vernon Avenue, he went to a

       liquor store and purchased a 22-ounce container of Budweiser and a half pint of Remy Martin.

¶ 36          Defendant further testified that as he walked south on Vernon Avenue toward 66th Street,

       he encountered Culverson, who was leaning against his car with the driver’s side door open.

       Defendant did not know Culverson prior to August 30, 2008. The car, which was running, was

       on Vernon Avenue, at the northwest corner of Vernon Avenue and 64th Street. Culverson was

       sweating and moaning. Defendant asked Culverson, “man, you good, you cool?” Culverson did

       not respond. Defendant saw that Culverson was bleeding on his left side. Defendant helped

       Culverson into the passenger’s side of the car by walking him around the front of the car. He did

       not ask Culverson any questions. Defendant then grabbed the bottle he had placed on the top of

       the car and set it on the armrest. The bottle eventually fell into the back seat, and beer spilled out

       onto the seat.

¶ 37          Defendant testified that he started to drive, making a right onto 64th Street and then a left

       onto Martin Luther King Drive. Defendant intended to take Culverson to St. Bernard Hospital at

       63rd Street or 64th Street and Wells Street. During the drive, he did not ask Culverson if he was

       okay or what happened. While driving south toward 67th Street, defendant tried to get around a


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       car that was moving slowly. He turned the wheel, lost control, and the car “[h]opped the curb”

       and “hit the pole.” The air bags deployed, and defendant started to get out of the car. After

       getting out of the car, defendant heard Culverson moaning. He told him to “[b]e cool.”

       Defendant started grabbing the bottles to get out of the car, and Mays pulled up alongside the

       car. She asked if she could call somebody, and defendant said “don’t call the police, call the

       paramedics.” Thereafter, he grabbed the bottles from the car and “got up out of there.” Defendant

       explained that he “didn’t want to get caught up with it, get blamed for it” and did not want “to

       deal with the police.” He acknowledged that he had a prior attempted murder conviction.

¶ 38          Defendant testified that he started running up 67th Street to a reggae club at 66th Street

       and State Street. The next day, he conducted an Internet search and saw on a news website that

       Culverson had died. He later drove by the scene and saw Culverson’s family setting out balloons.

¶ 39          When asked whether he called 911, defendant responded that he did not have a phone.

       The State showed defendant a photograph that showed a phone on the driver’s seat of the car at

       the scene of the accident. However, defendant said that phone could not have been in the seat

       because he was sitting on the seat. He did not see that phone or use it to call 911.

¶ 40          Defendant further testified that he lied and told the police that he did not know Culverson

       and did not recognize the car. He thought the police “were trying to be slick” and that while they

       were questioning him “they were trying to catch [him] up on something.” Defendant said that

       before he went into the interview room, the detectives asked him whether he had a conscience

       and “stuff like that.” The following colloquy ensued:

                      “[ASSISTANT STATE’S ATTORNEY]: So you were planning on

              taking this gunshot victim into the hospital, correct?

                      [DEFENDANT]: Yes.


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                [ASSISTANT STATE’S ATTORNEY]: You weren’t worried

      answering questions or being blamed for it at that point?

                [DEFENDANT]: If he would have got help, he would be able to

      tell everyone it wasn’t me. It would be a whole lot easier that way.

      Somebody dead, I am on my own.

                [ASSISTANT STATE’S ATTORNEY]: He was still alive and

      conscious when you left him.

                [DEFENDANT]: I didn’t want to stick around and talk to the

      police?

                [ASSISTANT STATE’S ATTORNEY]: Right. Because in fact,

      you are saying that you told him, you’re saying you told him you’ll be

      okay or stay cool or words to that effect, correct?

                [DEFENDANT]: Yes.

                [ASSISTANT STATE’S ATTORNEY]: You actually told him that

      if he said anything you would kill his family, didn’t you?

                [DEFENSE COUNSEL]: Objection.

                THE COURT: Overruled.

                [ASSISTANT STATE’S ATTORNEY]: Did you?

                [DEFENDANT]: No.

                [ASSISTANT STATE’S ATTORNEY]: No?

                [DEFENDANT]: I don’t even know his family. How am I going to

      kill his family.



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                      [ASSISTANT STATE’S ATTORNEY]: That’s why I’m asking

              you did you say that to him?

                      [DEFENDANT]: No.”

¶ 41          Defendant acknowledged that he had the police reports and grand jury transcript for two

       years, which included Mays’ testimony. He did not have the transcripts when he lied to the

       police on November 26, 2008.

¶ 42                                   3. The State’s Rebuttal Evidence

¶ 43          In rebuttal, Detective Forberg testified that driving south at 6690 South Martin Luther

       King Drive would be driving in the opposite direction of St. Bernard Hospital. He said the

       quickest route to St. Bernard Hospital, if one were parked on Vernon Avenue between 63rd and

       64th Streets, would be to drive west on 64th Street to Martin Luther King Drive, drive north on

       Martin Luther King Drive, and then drive west on 63rd Street. However, he acknowledged that

       one could take 67th Street to reach St. Bernard Hospital.

¶ 44          Forberg did not find any blood on the driver’s side of the car’s exterior, either on the door

       or in the frame. The State asked Forberg whether he ever found blood “anywhere on the exterior

       of the car where say somebody who would have been holding their sides and struggling to get

       around the car and bleeding on their hands would have gotten blood on the car, did you find any

       blood anywhere on the exterior of the car?” Forberg responded, “No. The car, as I said in my

       report, was very clean.”



¶ 45                                  4. Closing Arguments and Verdict

¶ 46          Following the presentation of evidence, the matter proceeded to closing arguments.

       During its argument in rebuttal, the State made the following assertion:

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                              “You’re going to get an instruction and [defense counsel] covered it in his

                      closing, evidence of a defendant’s previous conviction of an offense may be

                      considered by you only as it may affect his believability as a witness and must not

                      be considered by you as evidence of his guilt of the offense with which he is

                      charged.

                              And I agree with [defense counsel]. What that means is when you go back

                      there, you heard he is a convicted felon. A convicted felony [sic] for attempted

                      murder. You can’t go back to that jury room—what the instruction says, you can’t

                      go back to that jury room and say well, he is a bad guy, he committed that back

                      then so he must have committed it this time. You can’t do that.

                              What you can do and what you should do and what this law says, it affects

                      his credibility. You go back there and you say well, he is a convicted felon. He is

                      a convicted felon of attempted murder.

                              Convicted felons are not believable. They will tell you anything to get

                      away with it, to try and get away with it. That’s what felons do. That’s why this

                      law exists, because it does affect their credibility.

                              So he is an admitted liar. His credibility is affected by the fact that he’s a

                      convicted felon with an attempt murder conviction.”

       Later, the State also asserted that defendant was “a liar, admitted liar, proven liar. Can’t believe

       him because of his convicted felony.”

¶ 47          Following deliberations, the jury found defendant guilty of first degree murder.

¶ 48                                  C. Posttrial Motion and Sentencing




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¶ 49          Defendant filed an amended motion for new trial in which he argued, inter alia, that the

       trial court erred by denying his motion in limine regarding Culverson’s statements to Spalliero.

       Defendant also posited that the State acted improperly when, “during closing statement,” it

       asserted that defendant threatened to kill Culverson’s family if Culverson named defendant as

       the person who shot him. Following a hearing, the court denied defendant’s motion and

       sentenced him to 50 years in prison.

¶ 50          This appeal followed.

¶ 51                                           II. ANALYSIS

¶ 52          On appeal, defendant argues (1) the State failed to prove him guilty beyond a reasonable

       doubt; (2) the State committed reversible error by asking during cross-examination whether he

       threatened to kill Culverson’s family if Culverson told police that defendant shot him, where the

       State had no basis to ask that question and there existed no possibility of proving up that

       accusation; (3) the trial court should have admitted statements Culverson made to a paramedic on

       the scene as either dying declarations or excited utterances; and (4) the court erred by allowing

       the State to use defendant’s prior attempted first degree murder conviction for impeachment

       purposes.

¶ 53          As they are dispositive, we turn first to defendant’s arguments that (1) the State

       committed reversible error when it asked during cross-examination whether defendant threatened

       to kill Culverson’s family if Culverson identified defendant, even though the State had no

       evidence to support its accusation, and (2) the court erred by allowing the State to introduce his

       prior attempted murder conviction.

¶ 54                                  A. The State’s Cross-Examination




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¶ 55          Initially, the parties dispute whether defendant forfeited his contention regarding the

       State’s improper cross-examination by failing to raise it in his posttrial motion. To preserve an

       issue for review, a defendant must both object at trial and raise the issue in a written posttrial

       motion. People v. Thompson, 238 Ill. 2d 598, 611 (2010). In his posttrial motion, defendant

       argued that the State improperly asserted during closing argument that defendant threatened to

       kill Culverson’s family, not that it made such an assertion during cross-examination.

       Accordingly, the State posits that defendant forfeited review of his claim. Defendant responds he

       properly preserved the issue, notwithstanding counsel’s misstatement in the posttrial motion. In

       the alternative, defendant argues we should review the matter under the plain-error doctrine.

¶ 56          We agree with defendant that he properly preserved the issue of the State’s improper

       cross-examination, even though he mistakenly wrote in his posttrial motion that the State’s

       improper commentary occurred during closing argument instead of cross-examination. A

       posttrial motion must alert the trial court to an alleged error with enough specificity to give the

       court the reasonable opportunity to correct it. People v. Coleman, 391 Ill. App. 3d 963, 971

       (2009). Here, defendant’s posttrial motion argued that the State “during closing statement

       improperly, stated that defendant threatened to kill the victim’s family if the victim named the

       defendant. There was no evidence of that threat presented at trial.” This statement was specific

       enough to alert the court that defendant was challenging the prosecutor’s insinuation that

       defendant threatened Culverson’s family, even though the motion incorrectly stated the

       insinuation occurred during closing argument. Accordingly, we decline to apply forfeiture.

¶ 57          We turn then to the merits of defendant’s claim. “It is improper for the prosecutor to ask a

       witness questions for purposes of impeachment unless the prosecutor is prepared to offer proof

       of the impeaching information.” People v. Olinger, 112 Ill. 2d 324, 341 (1986). Thus, the State


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       must possess “a good-faith basis to ask the cross-examination questions, as well as the intent and

       the ability to complete its impeachment.” People v. Williams, 204 Ill. 2d 191, 212 (2003).

¶ 58          Here, in the context of questioning the plausibility of defendant’s version of events, the

       State asked defendant whether he threatened to kill Culverson’s family if Culverson said

       anything about defendant. However, there is nothing in the record to suggest the State had the

       intent or ability to complete its impeachment and show that defendant did in fact make such a

       threat to Culverson. Indeed, the only other person who could have testified to this alleged threat

       was Culverson, who was deceased at the time of trial. Culverson’s statements before dying were

       extensively examined at a pretrial hearing, and there was no evidence to suggest he told anybody

       defendant threatened to kill his family. In short, there was simply no evidence whatsoever to

       support the State’s question. Accordingly, the State’s questioning was clearly improper.

¶ 59          Because defendant properly preserved review of the State’s improper cross-examination,

       we turn to whether the error was harmless. See People v. Boand, 362 Ill. App. 3d 106, 132

       (2005) (improper cross-examination is not reversible error where it can be considered harmless

       error (citing People v. Enis, 139 Ill. 2d 264, 296 (1990)). The incomplete impeachment of a

       witness is reversible error only when the unfounded insinuation is substantial, repeated, and

       definitely prejudicial. People v. Adams, 283 Ill. App. 3d 520, 526 (1996).

¶ 60          Here, there were no witnesses to the actual shooting. Further, while it was undisputed that

       defendant was the driver of the car, he offered an explanation for his presence in the car.

       Accordingly, the jury’s verdict in this case rested heavily on whether it found defendant’s

       testimony credible, elevating the significance of the State’s insinuation. See People v. Robertson,

       198 Ill. App. 3d 98, 107-08 (1990) (concluding the State’s repeated, unsupported insinuations,

       during a bench trial, constituted reversible error where the State repeatedly erred in its


                                                       17
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       impeachment of the defense witnesses and the trial court commented that the “the issue really

       boil[ed] down to the creditibility [sic] of the witnesses”; the prosecutor’s improper impeachment

       technique materially contributed to the court’s finding that the witnesses lacked credibility). In

       addition, the State’s questioning occurred just after defendant admitted lying to the police.

       Further, after defendant denied threatening Culverson, the State asked, “No?” The timing of the

       State’s question and its response of “No?” had the combined effect of implying that defendant

       was lying when he claimed he did not threaten Culverson. In addition, the State then persisted in

       its questioning after defendant stated he did not know Culverson’s family, asking, “That’s why

       I’m asking you did you say that to him?”

¶ 61          As the State notes, defendant admitted that he lied to the police and that he was a

       convicted felon, both of which damaged defendant’s credibility. However, defendant provided an

       explanation for lying to the police, testifying he did not want to be blamed for the crime. Given

       that he had a prior felony conviction, defendant’s explanation that he wanted to avoid the police

       could have been believed by the jury. Further, the nature of the State’s accusation in this case—

       that defendant threatened to kill Culverson’s family—was so outrageous that it colored the entire

       trial. As the State’s insinuation was repeated, substantial, and certainly prejudicial, we must

       reverse.

¶ 62                         B. Defendant’s Prior Attempted Murder Conviction

¶ 63          Defendant also argues the trial court erred by allowing the State to enter into evidence his

       prior conviction for attempted first degree murder, as the prejudicial effect of his conviction

       outweighed its probative value. Defendant argues his 2008 theft conviction, as reflected on his

       presentence investigation report, would have more appropriately spoken to the veracity of his

       testimony. Further, he observes the State did not present a motive for his murder of Culverson.


                                                      18
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       He suggests that admitting the attempted murder conviction eliminated the need for the State to

       explain its theory of unusual events because after the jury heard he had tried to kill somebody

       else, “the present case simply became a case in which [defendant] succeeded in what he had

       previously attempted to do.” Defendant maintains that he was further prejudiced by the

       admission of his conviction because the State repeatedly reminded the jury of the conviction

       during closing argument.

¶ 64          Pursuant to People v. Montgomery, 47 Ill. 2d 510, 516 (1971), a prior conviction is

       admissible to attack a witness’s credibility where (1) the prior crime was punishable by death or

       imprisonment for more than a year or involved dishonesty or a false statement; (2) the prior

       conviction is less than 10 years old, or the witness was released from confinement within the last

       10 years; and (3) the probative value of admitting the conviction outweighs any danger of unfair

       prejudice. People v. Mullins, 242 Ill. 2d 1, 14 (2011). In conducting its balancing test, the trial

       court should consider, among other things, the nature of the prior conviction, the length of the

       witness’s criminal record, the witness’s age and circumstances, “and, above all, the extent to

       which it is more important to the search for truth in a particular case for the jury to hear the

       defendant’s story than to know of a prior conviction.” (Internal quotation marks omitted.) People

       v. Cox, 195 Ill. 2d 378, 383 (2001). “ ‘[S]imilarity alone does not mandate exclusion of the prior

       conviction,’ ” particularly where the jury is instructed to consider the defendant’s prior

       conviction only for impeachment purposes. Mullins, 242 Ill. 2d at 16 (quoting People v.

       Atkinson, 186 Ill. 2d 450, 463 (1999)). However, trial courts should be cautious in admitting

       prior convictions for the same crime as the crime charged. Atkinson, 186 Ill. 2d at 463. The

       determination as to the admissibility of a conviction for impeachment purposes is within the trial

       court’s discretion. Mullins, 242 Ill. 2d at 15. We review the trial court’s decision to admit


                                                       19
       1-13-0988


       evidence of defendant’s prior convictions for impeachment purposes for an abuse of discretion.

       Atkinson, 186 Ill. 2d at 461-62 (and cases cited therein).

¶ 65          On the facts before us, we conclude the trial court abused its discretion by admitting

       defendant’s prior attempted murder conviction and allowing the State to emphasize that

       conviction repeatedly during closing argument. At the outset, we note, although defendant argues

       his 2008 theft conviction would have more appropriately spoken to the veracity of his testimony,

       defendant did not make such an argument in the trial court. Instead, defendant’s argument during

       the pretrial hearing was that allowing the jury to hear that his prior conviction was for attempted

       murder would prejudice defendant. Accordingly, defendant asked that the jury not hear the

       nature of his conviction. The State’s motion to allow use of defendant’s prior conviction sought

       only to introduce defendant’s attempted murder conviction. Thus, the record does not show the

       court was even aware of defendant’s theft conviction at the time it determined his prior

       attempted murder conviction should be admitted. Accordingly, to the extent defendant suggests

       the court should have admitted his theft conviction instead of his attempted murder conviction,

       that suggestion is unpersuasive.

¶ 66          Nonetheless, we agree with defendant that the prejudicial effect of his attempted murder

       conviction outweighed its probative value, particularly in light of the State’s comments during

       closing argument. First, we note that defendant’s prior conviction for attempted murder was

       nearly identical to the murder charge for which he was on trial. We recognize that “ ‘similarity

       alone does not mandate exclusion of the prior conviction’ ” (Mullins, 242 Ill. 2d at 16 (quoting

       Atkinson, 186 Ill. 2d at 463)) and that the supreme court has found no abuse of discretion even

       when the trial court admits a prior conviction for the same crime for which the defendant is on

       trial. See Mullins, 242 Ill. 2d at 15, 19; Atkinson, 186 Ill. 2d at 458. However, our supreme court


                                                        20
       1-13-0988


       has also stated that trial courts should be cautious in admitting prior convictions for the same

       crime as the crime charged. Atkinson, 186 Ill. 2d at 463.

¶ 67          Further, the State’s comments in this case encouraged the jury to focus on defendant’s

       prior conviction rather than the facts of the case. On this point, we are guided by our court’s

       decision in People v. Pruitt, 165 Ill. App. 3d 947 (1988). There, the defendant was charged with

       armed robbery and unlawful restraint, which involved allegations that the defendant threatened

       rape. Id. at 952-53. At trial, the State introduced into evidence the defendant’s prior convictions

       for rape, deviate sexual assault, armed robbery, and aggravated kidnapping. Id. at 952. During

       closing argument, the State commented that evidence of the defendant’s prior convictions could

       only be considered in determining whether the defendant was believable as a witness. Id. at 951.

       However, the State also noted that the defendant was “a convicted felon” and “convicted rapist,

       armed robber, kidnaper [sic] and practitioner of deviate sexual assault.” Id. In addition, the State

       emphasized the defendant’s convictions in other parts of its closing, making such comments as

       “[y]ou can’t use that conviction” for “the purpose of saying well he did it before therefore he

       must have done it” and characterizing the defendant as “an accomplished lier [sic]” who “lies for

       the sake of lying.” Id.

¶ 68          On appeal, the Pruitt court reviewed the Montgomery decision and noted a decision cited

       by Montgomery, Gordon v. United States, 383 F.2d 936, 941 (D.C. Cir. 1967). The Pruitt court

       observed that in Gordon, the court found a defendant’s larceny conviction was properly admitted

       in the defendant’s trial for robbery and assault because the verdict in that case turned on how the

       jury resolved the credibility contest between the complainant and the defendant and in such

       situations, “ ‘there was greater, not less, compelling reason for exploring all avenues which

       would shed light on which of the two witnesses was to be believed.’ ” Pruitt, 165 Ill. App. 3d at


                                                       21
       1-13-0988


       952 (quoting Gordon, 383 F.2d at 941). The Gordon court also noted, however, that strong

       reasons existed for excluding convictions of the same crime for which the defendant was charged

       “because of the inevitable pressure on lay jurors to believe that ‘if he did it before he probably

       did so this time.’ ” Gordon, 383 F.3d at 940.

¶ 69          The Pruitt court observed that, like the verdict in Gordon, the verdict in the defendant’s

       case turned on how the jury resolved the credibility contest between the defendant and the

       complainant. Pruitt, 165 Ill. App. 3d at 952. Nonetheless, the court also noted that the

       defendant’s prior convictions were the same or similar to those for which he was on trial. Id. The

       court went on to state as follows:

                      “We believe under the circumstances that admission of these prior convictions

                      clearly created an inevitable pressure on the jurors to believe that if defendant

                      committed these crimes before he probably did so this time, notwithstanding the

                      State’s admonishment to the contrary. In fact, we are of the opinion that by the

                      State’s admonishment to the jury, that defendant’s convictions were only to be

                      considered for impeachment purposes, the State caused the jury to focus its

                      attention on the prior convictions and the probability that he had once again

                      committed the crimes with which he was charged. In effect, admission of

                      defendant’s past convictions rose to the level of proof to show defendant’s

                      propensity to commit a crime [citation] or similar crimes, which is highly

                      improper. The result was not only to conceivably inflame the jury’s passions, but

                      also to cause a search for the truth based upon defendant’s prior convictions rather

                      than solely on the facts of the case and the credibility of the witnesses.” Id. at 953.




                                                        22
       1-13-0988


       Accordingly, the Pruitt court held the prejudicial effect of the defendant’s prior convictions

       outweighed their probative value on the issue of the defendant’s credibility and that the court

       committed reversible error by admitting those convictions into evidence. Id.

¶ 70          As in Pruitt, here, the State repeatedly emphasized defendant’s prior conviction during

       closing argument. Although the State instructed the jury that it could only consider defendant’s

       conviction for impeachment purposes, it specifically pointed out that defendant had a prior

       conviction for attempted murder no less than three times. By repeating that defendant was a

       convicted felon and by emphasizing that this conviction was for attempted murder, the State’s

       comments actually encouraged the jury to focus on that prior attempted murder conviction rather

       than the facts of the case and convict the defendant on the basis of his prior conviction instead of

       the evidence presented at trial. In other words, as in Pruitt, the State’s comments here “created

       an inevitable pressure on the jurors to believe that if defendant” committed attempted murder in

       the past, he probably committed murder in this case. Pruitt, 165 Ill. App. 3d at 953. Accordingly,

       we conclude the prejudicial effect of the admission of defendant’s prior conviction outweighed

       its probative value and that the admission of that conviction amounted to reversible error.

¶ 71                                    C. Sufficiency of the Evidence

¶ 72          Defendant also argues that the evidence was insufficient to sustain his conviction.

       Although we are reversing his conviction based on the State’s insinuation and the improper

       admission of defendant’s prior conviction, we must consider the sufficiency of the evidence to

       determine whether retrial is barred by double jeopardy. See People v. Willis, 349 Ill. App. 3d 1,

       23 (2004). The double jeopardy clause forbids a second trial for the purpose of affording the

       prosecution another chance to present evidence it failed to present in the first proceeding. People

       v. Olivera, 164 Ill. 2d 382, 393 (1995). However, it does not preclude a second trial where a


                                                       23
       1-13-0988


       defendant’s conviction has been set aside because of an error in the proceedings leading to his

       conviction. Id. “If the evidence presented at the first trial, including the improperly admitted

       evidence, would have been sufficient for any rational trier of fact to find the essential elements of

       the crime proven beyond a reasonable doubt, retrial is the proper remedy.” People v. McKown,

       236 Ill. 2d 278, 311 (2010). “The weight to be given the witnesses’ testimony, the credibility of

       the witnesses, resolution of inconsistencies and conflicts in the evidence, and reasonable

       inferences to be drawn from the testimony are the responsibility of the trier of fact.” People v.

       Sutherland, 223 Ill. 2d 187, 242 (2006).

¶ 73           Defendant argues the evidence was insufficient to sustain his conviction because the State

       failed to prove that he shot Culverson. However, we conclude a rational trier of fact could have

       found defendant shot Culverson based on the totality of the evidence presented. First, it was

       undisputed that defendant was the driver of the car. Further, based on Latunya’s testimony that

       Culverson dropped her off at her home at around 9 p.m. and Mays’ testimony that she observed

       the car crash at around 9:25 p.m., the evidence showed Culverson was shot between

       approximately 9 and 9:30 p.m. 2 While Forberg could not find Culverson’s car in any of the seven

       to nine POD cameras along the possible routes Culverson could have taken, Forberg also

       testified those cameras rotate. In addition, the nature of Culverson’s wounds on his hand and

       abdomen, combined with the fact that a semiautomatic weapon bullet was found in Culverson’s

       body but no bullets or shells were recovered in the car and there was no evidence of close range

       firing, tended to show Culverson was shot from outside of the car.



               2
                During oral argument, defense counsel suggested that People’s exhibit No. 44, a map produced
       by Forberg using Google.com, stated the route from Culverson’s sister’s home to the accident site would
       only have taken 11 minutes. We note the map contains no indication that the 11-minute calculation it
       shows accounts for traffic. Accordingly, we do not find it to be inconsistent with Forberg’s testimony that
       the routes he drove from Culverson’s sister’s home to the accident site took 20 to 25 minutes.
                                                           24
       1-13-0988


¶ 74          Moreover, Mays testified that when she offered to call an ambulance, defendant

       specifically instructed her to call the paramedics but not the police. Further, before the

       paramedics or police arrived, defendant collected items from the car and ran from the scene.

       Notably, defendant also lied to the police during his interview, denying that he knew Culverson

       or that he was ever in his car. Defendant also acknowledged that by the time he testified and

       admitted to being in Culverson’s car, he had possession of Mays’ grand jury testimony for over

       two years, suggesting he could have tailored his testimony at trial to match Mays’ testimony.

       Based on his presence in the car and the evidence demonstrating his consciousness of guilt, a

       rational jury could have found defendant guilty of Culverson’s murder.

¶ 75          In arguing the evidence was insufficient to sustain his conviction, defendant notes he

       presented an explanation for leaving the scene and lying where he testified he had a felony

       conviction and did not want to be blamed for Culverson’s murder. Nonetheless, the jury could

       have chosen not to believe defendant’s version of events, particularly where defendant’s

       credibility was called into question by his initial lies to the police and his prior conviction. See

       McKown, 236 Ill. 2d at 311 (in determining whether a double-jeopardy violation has occurred,

       we may consider the evidence at the first trial, including evidence improperly admitted). Further,

       although defendant testified that he found Culverson, bleeding and leaning against the open front

       passenger door and that he then led Culverson around the front of the car into the passenger’s

       seat, Detective Forberg testified he did not find blood on the driver’s side of the car’s exterior,

       either on the door or in the frame, or anywhere on the exterior of the car. Forensic investigator

       Ryan testified that he found blood on the interior front passenger door panel, not on the driver’s

       side. Forberg also testified that defendant’s route to the hospital was not the fastest route. In sum,




                                                        25
       1-13-0988


       the State presented evidence contradicting defendant’s version of events, from which the jury

       could have rationally rejected his testimony.

¶ 76          In reaching our determination that the evidence was sufficient, we are by no means

       suggesting the evidence was overwhelming. Indeed, as we pointed out in discussing the State’s

       improper cross-examination, much of this case boiled down to whether the jury found defendant

       credible. However, the relevant question in determining whether retrial is permitted is “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 crime beyond a reasonable doubt.” (Emphasis added.)

       People v. Lopez, 229 Ill. 2d 322, 367 (2008). Further, “[t]he weight to be given the witnesses’

       testimony, the credibility of the witnesses, resolution of inconsistencies and conflicts in the

       evidence, and reasonable inferences to be drawn from the testimony are the responsibility of the

       trier of fact.” Sutherland, 223 Ill. 2d at 242. Much of the evidence in this case hinged on the

       credibility and weight to be given to the witnesses’ testimony, which are matters for the jury, not

       our court. If the jury in this case found the State’s witnesses more credible than defendant, it

       could have found defendant guilty beyond a reasonable doubt. In other words, viewing the

       evidence in the light most favorable to the State, we cannot say that no rational trier of fact could

       have found defendant guilty. Accordingly, remand for retrial is the proper remedy.

¶ 77          Because they are likely to arise on retrial, we will now address defendant’s arguments

       that Culverson’s statements to Spalliero should have been admitted under the dying declaration

       or excited utterance exception.

¶ 78                                D. Culverson’s Statements to Spalliero




                                                        26
       1-13-0988


¶ 79          Defendant posits that the trial court erred by denying his motion in limine to admit

       Culverson’s statements to Spalliero that he was not shot and that the driver of the car did not

       shoot him.

¶ 80          Hearsay is defined as “a statement, other than one made by the declarant while testifying

       at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid.

       801(c) (eff. Jan. 1, 2011). Due to its lack of reliability, hearsay is generally inadmissible, unless

       it falls into an exception. People v. Caffey, 205 Ill. 2d 52, 88 (2001). Here, defendant argues

       Culverson’s statements to Spalliero fall into two exceptions: the dying declaration exception and

       the excited utterance exception. 3

¶ 81                                          1. Dying Declaration

¶ 82          Illinois Rule of Evidence 804(b)(2) provides that in a prosecution for homicide, a

       statement made by a declarant while believing his death was imminent, concerning the cause or

       circumstances of what he believed to be impending death, is not excluded by the hearsay rule. Ill.

       R. Evid. 804(b)(2) (eff. Jan. 1, 2011). The requirements for a dying declaration are as follows:

       “(1) the declaration pertains to the cause or circumstances of the homicide; (2) the declarant

       [has] the fixed belief and moral conviction that death is impending and almost certain to follow

       almost immediately; and (3) the declarant [has the] mental faculties sufficient to give an accurate

       statement about the cause or circumstances of the homicide.” (Internal quotation marks omitted.)

       People v. Ingram, 382 Ill. App. 3d 997, 1004 (2008). We give deference to a trial court’s

       judgment on whether to admit a statement as a dying declaration, and we will not overturn the

       court’s determination unless it is “palpably against the manifest weight of the evidence.”


              3
                In his initial brief, defendant argued only that the statement was admissible as a dying
       declaration. Defendant subsequently filed a supplemental brief asserting the statement should also have
       been admitted as an excited utterance.
                                                         27
       1-13-0988


       (Internal quotation marks omitted.) People v. Graham, 392 Ill. App. 3d 1001, 1005 (2009). A

       finding is against the manifest weight of the evidence where the opposite conclusion is clearly

       evident. People v. Hatchett, 397 Ill. App. 3d 495, 502 (2009).

¶ 83          Defendant contends that the trial court erred by finding Culverson’s statements were not

       dying declarations, as they met all three requirements of a dying declaration. Further, defendant

       argues the court improperly refused to admit Culverson’s declaration on the basis that it was not

       reliable. He maintains the court should not have made credibility determinations or determined

       the weight of Culverson’s statements, as those were matters for the jury.

¶ 84          The trial court’s determination that Culverson’s statements were not dying declarations

       was not against the manifest weight of the evidence. As previously detailed, one of the

       requirements for a statement to be admitted as a dying declaration is that the declarant must

       possess mental faculties sufficient to provide an accurate statement about his homicide. See

       Ingram, 382 Ill. App. 3d at 1004. Yet, Culverson initially denied having been shot, even though

       he clearly had been. “In determining whether a declarant possessed mental competency to give

       an accurate statement, a trial court may consider whether he was able to answer questions about

       the incident.” Hatchett, 397 Ill. App. 3d at 504. Thus, in Hatchett, the appellate court concluded

       the trial court could find that the deceased possessed sufficient mental faculties to give accurate

       statements where the deceased understood all of the sergeant’s open-ended questions and

       answered them promptly and coherently. Id. at 497, 504-05. Likewise, in People v. Davis, 93 Ill.

       App. 3d 217, 233 (1981), the appellate court rejected the defendant’s claim that the deceased

       lacked sufficient mental facilities, noting the deceased answered a witness’s questions “promptly

       and accurately and thus understood what was said to him and what he said to [the witness].” By

       contrast, in this case, Culverson did not correctly answer the question of whether he had been


                                                       28
       1-13-0988


       shot, suggesting he lacked sufficient mental faculties to provide an accurate statement. Thus, the

       trial court’s determination that Culverson’s statement was not a dying declaration is not against

       the manifest weight of the evidence.

¶ 85           In so concluding, we reject defendant’s assertion that the trial court improperly refused to

       admit the statement as a dying declaration based on its “unsupported belief” that defendant shot

       Culverson and Culverson was afraid of defendant. In support of his assertion, defendant relies on

       the court’s statement that it did “not believe that there is reliability, nor is there a situation where

       the statements were made to assist the police in their investigation of getting a known offender

       off the streets.” He further notes that, at the first hearing on his motion in limine, the court made

       the following statement. “Counsel, how about the fact [that Culverson] is so scared of

       [defendant] he won’t admit he was shot let alone the man driving the car shot him? I mean

       you’re putting in statements. You want to put in statements by a man who is suffering gunshot

       wounds that won’t even tell a paramedic that he’s been shot.”

¶ 86           The trial court’s comments do not convince us that the court’s refusal to admit the

       statements as dying declarations was improper. As previously detailed, the evidence supported a

       finding that the requirements for a dying declaration were not met. Further, we perceive the

       court’s comment regarding the “reliability” of Culverson’s statement as a commentary on

       whether Culverson possessed sufficient mental capability to make the statement. The court stated

       “the reliability is questioned” because Culverson “had an obvious gunshot wound” and “either

       was unsure of the question or was unaware of the fact that he had been shot.” Notably, at a

       posttrial hearing, the court explained that “this was a conversation, and the evidence is clear that

       it was a conversation with a man who was not of his right mind. The first question was have you

       been shot. Response, no. This is not a dying declaration, it’s not at [sic] excited utterance, and


                                                         29
       1-13-0988


       it’s certainly not a statement made to medical personnel for the purpose of treatment or

       diagnosis. He clearly had been shot, he said he wasn’t shot, and he died later at the hospital.”

       Thus, the court’s comments regarding the “reliability” of Culverson’s statements were indicative

       of the court’s belief that Culverson was “not of his right mind” and do not show the court denied

       the motion in limine based on its own assessment of Culverson’s credibility.

¶ 87          Further, there was no testimony at trial that Culverson held “the fixed belief and moral

       conviction that [his] death [was] impending and almost certain to follow almost immediately.”

       (Internal quotation marks omitted.) Ingram, 382 Ill. App. 3d at 1004. Culverson had been shot,

       complained of and exhibited labored breathing, and became nonresponsive shortly after

       Spalliero’s contact with him. However, the fact that Culverson denied being shot makes it

       unclear whether he even knew of his injury, much less that he believed his death was imminent.

       There was no evidence that Culverson made any statements indicating he believed his death was

       imminent. Further, when the State asked Spalliero, “you never told Mr. Culverson that he was

       going to die soon, did you?” Spalliero responded, “There’s no way I can know that for sure.”

       This testimony failed to establish Spalliero did, in fact, tell Culverson he was going to die soon.

       Based on the foregoing, the court did not err by refusing to admit Culverson’s statement as a

       dying declaration.

¶ 88                                         2. Excited Utterance

¶ 89          Defendant also posits that Culverson’s statement was admissible as an excited utterance.

       He acknowledges that he did not initially seek admission of Culverson’s statements under the

       excited utterance exception. However, he posits the issue is not forfeited, as the trial court

       considered the excited utterance exception both before and after trial. In the alternative,

       defendant argues that we should review the matter under the plain-error doctrine.


                                                       30
       1-13-0988


¶ 90          We need not resolve the issue of whether defendant forfeited his contention, because

       whether we find he preserved his claim or whether we review his claim under the plain-error

       doctrine, we conclude no error occurred. See People v. Eppinger, 2013 IL 114121, ¶ 19 (the first

       step in plain-error review is to determine whether error occurred).

¶ 91          Illinois Rule of Evidence 803(2) provides that an excited utterance is not excluded by the

       hearsay rule. Ill. R. Evid. 803(2) (eff. Apr. 26, 2012). An “excited utterance” is defined as “[a]

       statement relating to a startling event or condition made while the declarant was under the stress

       of excitement caused by the event or condition.” Ill. R. Evid. 803(2) (eff. Apr. 26, 2012). Our

       supreme court has explained the rationale behind the spontaneous declaration or excited

       utterance rule as follows:

                      “ ‘The admissibility of such exclamation is based on our experience that, under

                      certain external circumstances of physical or mental shock, a stress of nervous

                      excitement may be produced in a spectator which stills the reflective faculties and

                      removes their control, so that the utterance which then occurs is a spontaneous

                      and sincere response to the actual sensations and perceptions already produced by

                      the external shock. Since this utterance is made under the immediate and

                      uncontrolled domination of the senses, rather than reason and reflection, and

                      during the brief period when consideration of self-interest could not have been

                      fully brought to bear, the utterance may be taken as expressing the real belief of

                      the speaker as to the facts just observed by him.’ ” People v. Damen, 28 Ill. 2d

                      464, 471 (1963) (quoting Keefe v. State, 72 P.2d 425, 427 (Ariz. 1937)).

¶ 92          For a statement to qualify as an excited utterance or spontaneous declaration, three

       requirements must be satisfied: “there must be an occurrence sufficiently startling to produce a


                                                       31
       1-13-0988


       spontaneous and unreflecting statement, there must be an absence of time for the declarant to

       fabricate the statement, and the statement must relate to the circumstances of the occurrence.”

       People v. Sutton, 233 Ill. 2d 89, 107 (2009). 4 In analyzing whether a statement is spontaneous,

       excited, and unreflecting, courts consider several factors, such as 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, 382 (1990). The period of time that may pass without affecting

       the admissibility of a statement varies greatly, and the “critical inquiry” with respect to time is

       “whether the statement was made while the excitement of the event predominated.” (Internal

       quotation marks omitted.) Sutton, 233 Ill. 2d at 107.

¶ 93             We review the trial court’s determination regarding the excited utterance exception for an

       abuse of discretion. People v. Stiff, 391 Ill. App. 3d 494, 501 (2009). An abuse of discretion

       occurs only where the court’s ruling is arbitrary, fanciful, or unreasonable or where no

       reasonable person would take the court’s view. People v. Connolly, 406 Ill. App. 3d 1022, 1026

       (2011).

¶ 94             Defendant argues Culverson’s statements were admissible as excited utterances because

       they related to startling events, i.e., a shooting and car accident, while Culverson was under the

       stress and excitement caused by those events. He notes that our appellate court has stated the

       admissibility of an excited utterance does not come from the reliability of the declarant but,

       rather, from the circumstances under which the statements are made. See People v. Cherry, 88

       Ill. App. 3d 1048, 1052 (1980). Defendant posits that even though Culverson incorrectly

       answered Spalliero’s question about whether he had been shot, the circumstances show he was

       under physical and mental shock from the shooting and car accident. He notes Culverson made

                 4
               The exception is referred to interchangeably as the spontaneous declaration and excited utterance
       exception. See, e.g., House, 141 Ill. 2d at 381.
                                                          32
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       the statements while on the verge of death, less than 30 minutes after the shooting and car

       accident, and while experiencing labored breathing. Defendant also posits that Culverson lacked

       a motive to deliberately mislead Spalliero. In sum, he maintains that the statements were

       admissible, and it was for the jury to determine the weight to be given to the statements.

¶ 95          The trial court did not abuse its discretion in determining Culverson’s statements were

       not excited utterances. Although Culverson made his statements within 30 minutes of the

       shooting and the car accident and shortly before losing consciousness, the fact that he initially

       made an inaccurate statement suggests that (1) the shooting and car accident were not

       sufficiently startling to produce an unreflecting statement, or (2) there was sufficient time for

       Culverson to fabricate the statement. In other words, if Culverson was so disoriented as to be

       unaware that he was shot, then clearly he was not making his statements “while the excitement

       of the event predominated.” (Internal quotation marks omitted.) Sutton, 233 Ill. 2d at 107. Or, if

       Culverson was aware that he was shot but intentionally claimed that he was not, his ability to lie

       shows enough time had passed to allow him to fabricate the statement. Either way, the

       inaccuracy of Culverson’s initial statement clearly calls into question the reliability of his

       statement that defendant did not shoot him. Yet, the excited-utterance exception is based on the

       idea that when a statement is made “under certain external circumstances of physical or mental

       shock, a stress of nervous excitement may be produced in a spectator which stills the reflective

       faculties and removes their control, so that the utterance which then occurs is a spontaneous and

       sincere response to the actual sensations and perceptions already produced by the external

       shock.” (Internal quotation marks omitted.) Damen, 28 Ill. 2d at 471. Given the unreliability of

       Culverson’s statements, we find no abuse of discretion in the court’s determination that

       Culverson’s statements were not excited utterances.


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¶ 96          In support of his claim that the trial court should have left it up to the jury to decide the

       weight to give Culverson’s statements, defendant relies on United States v. Davis, 577 F.3d 660,

       669-70 (6th Cir. 2009). There, a witness testified that she saw the defendant with a gun, she was

       scared because she believed he had been involved in a recent murder, and she quickly walked

       away because she felt responsible for the small children in her care. Id. at 669. Shortly thereafter,

       the witness called 911. Id. In her call, the witness made certain “exaggerations,” stating the

       defendant had two guns, instead of the one she testified to, and that she saw the defendant 5

       minutes earlier, when at trial she testified she saw him 30 seconds to 1 minute earlier. Id. The

       Davis court concluded the witness’s exaggerations did not preclude the applicability of the

       excited utterance exception. Id. at 669-70. The court noted that “ ‘a statement that satisfies all of

       the elements of our test for excited utterances meets the threshold admissibility under Rule

       803(2), even though its reliability might be subject to challenge on such grounds as inconsistency

       with subsequent statements of the speaker’s motive to fabricate.’ ” Id. at 669 (quoting United

       States v. Hadley, 431 F.3d 484, 498 (6th Cir. 2005)). The court explained that the witness’s

       exaggerations went to the weight and not the admissibility of the 911 call. Id.

¶ 97          We note, initially, that Davis is a federal decision, interpreting a Federal Rule of

       Evidence. Our court is not bound by federal decisions where those decisions are used to support

       arguments relating to state law. Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 276

       (2001). Further, Davis is distinguishable. The witness in Davis exaggerated certain facts,

       whereas Culverson provided a completely inaccurate statement. Defendant also relies on House.

       First, we note, defendant has not cited any portion of the House decision in which the supreme

       court considered whether the inaccuracy of the victim’s statement affected its admissibility as an

       excited utterance. In any event, in House, the victim provided a description of her attackers that


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        did not exactly match the defendant’s description. The House victim described one of her

        assailants as 5 feet and 8 or 9 inches tall and fat and the other assailant as 5 feet 7 inches tall and

        weighing 140 pounds. House, 141 Ill. 2d at 352-53. The defendant testified that he was 5 feet 7

        inches tall and weighed 180 to 200 pounds. Id. at 361. Thus, the House victim’s description of

        her assailants varied slightly from the defendant’s actual description; however, the House victim

        did not make a wholly inaccurate statement like Culverson. Accordingly, the same concern

        regarding the spontaneity and reliability of Culverson’s statement was not implicated in Davis or

        House.

¶ 98             For the reasons stated, we conclude the trial court’s finding that Culverson’s statement

        was not an excited utterance was not arbitrary, fanciful, or unreasonable.

¶ 99                                            III. CONCLUSION

¶ 100            For the reasons stated, we reverse the trial court’s judgment and remand for a new trial.

¶ 101            Reversed and remanded.

¶ 102            JUSTICE GORDON, specially concurring.

¶ 103            I must specially concur. Like the majority, I would reverse and remand for a new trial. It

        is outrageous that an assistant State’s Attorney (ASA) would essentially tell the jury that

        defendant “actually told [the victim] that if he said anything [defendant] would kill his family,”

        when there was absolutely no evidence to support this assertion. The ASA had no clue what was,

        or was not, said inside the vehicle prior to the arrival of the paramedic, and the ASA made up the

        statement out of whole cloth. An ASA is clothed with the authority of the State, and the jury

        assumes that he or she acts with the dignity of that office. That an ASA would completely make

        up a declaration by a dead victim violates every principle upon which our justice system is

        based. Once the ASA asked defendant whether he made the statement, the case was over. At that


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        point in time, nothing could have cured the prejudice and there was no way defendant could have

        received a fair trial.

¶ 104           However, I must write separately because I believe it is important to address, in the

        alternative, whether the ASA’s error rises to the level of plain error and because I believe that the

        victim’s statement qualifies as both a dying declaration and an excited utterance, and it should be

        admitted at a retrial.

¶ 105                                            I. Not Forfeited

¶ 106           I agree with the majority that the objection is not forfeited. In order to preserve an issue

        for review, a defendant must both (1) object at trial and (2) raise the issue in a written posttrial

        motion. People v. Thompson, 238 Ill. 2d 598, 611-12 (2010).

¶ 107           First, in the case at bar, the defense counsel objected promptly at trial when the ASA

        made this statement. A general objection raises the issue of relevance. People v. Villanueva, 382

        Ill. App. 3d 301, 304-05 (2008). An assertion that is not based on the evidence is completely

        irrelevant to the issues at trial, and thus, the objection should have been sustained. But, as noted,

        that could never have cured the outrageous conduct of the ASA.

¶ 108           Second, in his posttrial motion, defendant argued that the State improperly asserted that

        defendant threatened to kill the victim’s family. However, the motion mistakenly stated that this

        assertion occurred during closing argument rather than during cross-examination. “An issue

        raised by a litigant on appeal does not have to be identical to the objection raised at trial, and we

        will not find that a claim has been forfeited when it is clear that the trial court had the

        opportunity to review the same essential claim.” People v. Lovejoy, 235 Ill. 2d 97, 148 (2009).

¶ 109           Illinois case law requires specificity in posttrial motions in order to accomplish the

        following: to allow the trial judge to review his own decisions, to allow the reviewing court to


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        determine whether the trial court has had an adequate opportunity to reassess the allegedly

        erroneous rulings, and to prevent litigants from stating general objections and then raising issues

        on appeal that the trial judge was never given an opportunity to consider. Sheth v. SAB Tool

        Supply Co., 2013 IL App (1st) 110156, ¶ 111 (quoting Balsley v. Raymond Corp., 232 Ill. App.

        3d 1028, 1029 (1992)). See also People v. Coleman, 391 Ill. App. 3d 963, 971 (2009) (“A

        posttrial motion must alert the trial court to the alleged error with enough specificity to give the

        court a reasonable opportunity to correct it.”).

¶ 110           While the use of boilerplate language in a posttrial motion without further specificity is

        not enough to preserve an issue for appeal, there was no boilerplate language used here. See

        People v. Jones, 2015 IL App (1st) 121016, ¶ 106. In the case at bar, defendant identified the

        specific untruth at issue, and this was sufficient to alert the trial court to the issue. Thus, the issue

        is not forfeited for our review.

¶ 111                                        II. Harmless Error Review

¶ 112           Since the error is preserved, we should apply a harmless error review. The burden of

        proof is thus on the State to show beyond a reasonable doubt that the error did not affect the

        outcome of the proceedings. People v. Mullins, 242 Ill. 2d 1, 23 (2011). In other words, the

        inquiry is whether the defendant would have been convicted regardless of the error. Mullins, 242

        Ill. 2d at 23. To make this determination, we review the record of the proceedings as a whole.

        Mullins, 242 Ill. 2d at 23.

¶ 113                                          III. Plain Error Review

¶ 114           However, even if we were to find that the issue was not preserved, this error would still

        require reversal under the plain error doctrine. When an issue is not preserved for our review, we

        may still review it for plain error. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). However,


                                                           37
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        the “ ‘burden of persuasion’ ” switches to the defendant to show that the error rises to the level of

        plain error. Piatkowski, 225 Ill. 2d at 564. Under the plain error doctrine, we may review an

        unpreserved issue, either (1) when a clear or obvious error occurred and the evidence is so

        closely balanced that the error alone threatened to tip the scales of justice against the defendant,

        regardless of the seriousness of the error or (2) when a clear or obvious error occurred and that

        error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity

        of the judicial process, regardless of the closeness of the evidence. Piatkowski, 225 Ill. 2d at 565.

¶ 115             Last month, in People v. Clark, 2016 IL 118845, our supreme court observed that,

        “although our decisions” in a couple of prior cases “equated second-prong plain error with

        structural error, we did not restrict plain error to the [six] types of structural error that have been

        recognized by the [United States] Supreme Court.” Clark, 2016 IL 118845, ¶ 46 (discussing

        People v. Glasper, 234 Ill. 2d 173 (2009), and People v. Thompson, 238 Ill. 2d 598 (2010)).

        Thus, second-prong error certainly includes the six categories identified by the United States

        Supreme Court, but it is not limited to them. The six identified categories of second-prong error

        are (1) a complete denial of counsel, (2) a biased trial judge, (3) racial discrimination in the

        selection of the grand jury, (4) a denial of self-representation at trial, (5) a denial of a public trial;

        and (6) a defective reasonable-doubt instruction. People v. Johnson, 2015 IL App (1st) 141216,

        ¶ 46.

¶ 116             However, in this appeal, defendant does not ask us to consider the issue under the second

        prong of the plain error doctrine, 5 so we will consider it first as harmless error and then, in the

        alternative, under the first prong of the plain error doctrine.

¶ 117                                                   IV. Error

                  5
                   Defendant’s appellate briefs were filed prior to our supreme court’s decision in Clark, 2016 IL
        118845.
                                                            38
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¶ 118           The first question under either the plain error or harmless error doctrines is whether any

        error occurred at all. Piatkowski, 225 Ill. 2d at 565 (“the first step” in a plain error analysis is “to

        determine whether error occurred”); Mullins, 242 Ill. 2d at 23-25 (first the court determined that

        there was an error and then considered whether it was harmless or reversible error).

¶ 119           In Glasper, our supreme court held that an improper remark by a prosecutor constituted

        error. Glasper, 234 Ill. 2d at 215. 6 In Glasper, the prosecutor argued that the conditions in which

        defendant were held during his confession “sound[ed] a lot like jury service” and the prosecutor

        then asked whether the jurors were “ready to confess to a murder [they] didn’t commit?”

        (Internal quotation marks omitted.) Glasper, 234 Ill. 2d at 214. Our supreme court found this

        comment constituted error, since “[t]he prosecutor’s comment was irrelevant and had no purpose

        other than to distract the jurors from their duty—assessing the evidence in the case.” Glasper,

        234 Ill. 2d at 215.

¶ 120           Similarly, in the case at bar, the prosecutor’s remark had no purpose other than to distract

        the jurors from their duty to assess the evidence, since it was not based on any actual evidence in

        the case. However, the remark here was far worse because at least the remark in Glasper had

        some connection to the conditions in which the defendant had been held and could be claimed to

        be an appeal to the jurors’ own experiences, whereas the remark here had no connection to any

        evidence in the case and could only be misinterpreted by the jurors who had no basis for judging

        it. After defendant denied threatening the victim, the State followed up with a sarcastic “No?”

        thereby implying that defendant was lying and the State knew it. This error was plain and

        obvious. Piatkowski, 225 Ill. 2d at 565.



                6
                 Although the supreme court went on to conclude that the State’s evidence was overwhelming
        and thus reversal was not required, the court still found the remark to constitute error. Glasper, 234 Ill. 2d
        at 215.
                                                             39
        1-13-0988


¶ 121          Having now concluded that there was plain, obvious and—I would say—glaring error, I

        examine it first under the harmless error doctrine and, in the alternative, under the first prong of

        the plain error doctrine.

¶ 122                                           V. Harmless Error

¶ 123          As noted above, in a harmless error analysis, the State has the burden of proving beyond

        a reasonable doubt that the error did not affect the outcome of the proceedings. Mullins, 242 Ill.

        2d at 23. The State cannot possibly satisfy this burden in this case.

¶ 124          The undisputed evidence at trial established that defendant drove the victim’s vehicle. A

        bystander testified that the driver and the victim appeared to be conversing inside the victim’s

        vehicle when she arrived and that defendant instructed her to call the paramedics. According to

        the deputy medical examiner, the victim died of multiple gunshot wounds. A ballistics expert

        testified that the bullet retrieved from the victim’s body was consistent only with having been

        fired from a semiautomatic pistol. A forensic investigator testified that he did not recover any

        cartridge casings or bullet fragments inside the vehicle and that, if a semiautomatic weapon or a

        gun with a clip were fired inside the vehicle, he would normally expect to find a casing in the

        vehicle. No gunshot residue testing was done on either the vehicle or defendant. One cannot even

        say that defendant was present at the crime scene, because the evidence did not conclusively

        establish that the vehicle was the crime scene.

¶ 125          Although the State is not required to show a motive, no motive was shown, and there was

        no evidence to link defendant to a gun, to the shooting, to the victim, or to the crime scene—

        wherever it was—other than defendant’s presence next to the shooting victim and his departure

        after the bystander arrived. Defendant, who was previously convicted of attempted murder,

        testified that he was nervous that the police would try to pin the shooting on him and thus was


                                                          40
        1-13-0988


        not truthful with them about whether he had been in the vehicle. In sum, the evidence was far

        from overwhelming, and I reach that conclusion without even considering the exonerating

        statement by the victim himself that defendant did not shoot him.

¶ 126           If we considered, in addition, the completely exonerating statement by the victim, there is

        simply no way to find this error harmless.

¶ 127                                 VI. Plain Error Under the First Prong

¶ 128           Although this error was preserved for our review and was not harmless, defendant also

        asks to consider, as an alternative argument, whether it rose to the level of plain error under the

        first prong of the plain error doctrine. For the reasons discussed below, I find that it does.

¶ 129           Under the first prong of the plain error doctrine, we will reverse a conviction when a

        clear or obvious error occurred and the evidence is so closely balanced that the error alone

        threatened to tip the scales of justice against the defendant, regardless of the seriousness of the

        error. Piatkowski, 225 Ill. 2d at 565. “Whether the evidence is closely balanced is, of course, a

        separate question from whether the evidence is sufficient to sustain a conviction on review

        against a reasonable doubt challenge.” Piatkowski, 225 Ill. 2d at 566. Thus, evidence may be

        sufficient but still closely balanced. Piatkowski, 225 Ill. 2d at 567 (our supreme court proceeded

        to consider whether the evidence was closely balanced, after first determining that it was

        sufficient).

¶ 130           “The relevant inquiry” for sufficiency purposes is “whether, after viewing the evidence in

        the light most favorable to the prosecution any rational trier of fact could have found the

        essential elements of the crime beyond a reasonable doubt.” Piatkowski, 225 Ill. 2d at 566. By

        contrast, the relevant inquiry under the first prong is whether defendant met his burden to “show

        that the quantum of evidence presented by the State against the defendant rendered the evidence


                                                          41
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        ‘closely balanced.’ ” Piatkowski, 225 Ill. 2d at 566 (quoting People v. Herron, 215 Ill. 2d 167,

        193 (2005)). “When an error occurs in a close case, we will opt to ‘err on the side of fairness, so

        as not to convict an innocent person.’ ” Piatkowski, 225 Ill. 2d at 566 (quoting Herron, 215 Ill.

        2d at 193).

¶ 131           As I explained above, this error was not just plain and obvious but glaring, and the

        evidence against him was far from overwhelming. As a result, I find that this error was the piece

        of evidence that tipped the scales of justice against defendant, and we must reverse.

¶ 132           In sum, I conclude that this error was preserved for our review and was not harmless. In

        the alternative, I find that, even if it was not preserved, it rose to the level of plain error under the

        closely balanced prong of that doctrine. Either way, we must reverse.

¶ 133                                                VII. Retrial

¶ 134           Since I conclude on this basis alone that reversal is required I do not consider defendant’s

        other claims of error. However, at a retrial, I would permit the introduction of the victim’s

        statement as a dying declaration (Ill. R. Evid. 804(b)(2) (eff. Jan. 1, 2011)), and I would not

        permit the introduction of defendant’s prior conviction for attempted murder since it is more

        prejudicial than probative. Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 135           Rule 403 of the Illinois Rules of Evidence provides, in relevant part, that “evidence may

        be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”

        Ill. R. Evid. 403 (eff. Jan. 1, 2011); Mullins, 242 Ill. 2d at 15 (a prior conviction “must be

        excluded” if its probative value is substantially outweighed by its prejudice). Defendant argues

        that his 2008 theft conviction would have accomplished the stated goal of impeaching his

        credibility without any prejudice. People v. Cox, 195 Ill. 2d 378, 384 (2001) (with admission of

        prior convictions to impeach credibility, “ ‘[t]he focus’ ” should be “ ‘on crimes which bear on


                                                           42
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        the defendant’s truthfulness as a witness’ ” (quoting People v. Williams, 161 Ill. 2d 1, 39

        (1994))). The question then is whether it is error to admit defendant’s 1998 attempted murder

        conviction when his 2008 theft conviction would accomplish the stated goal of impeaching

        defendant’s credibility. In the case at bar, the ASA stated repeatedly in closing that defendant

        was convicted of attempted murder. With so little evidence connecting defendant to this victim,

        defendant’s prior conviction for a similar crime became more prejudicial on the issue of guilt

        than probative on the issue of credibility. Cox, 195 Ill. 2d at 384 (“Convictions for the same

        crime for which defendant is on trial should be admitted sparingly.”); People v. Williams, 161 Ill.

        2d 1, 36 (1994) (“if the evidence is close, a jury is likely to convict the defendant on his past

        record rather than on the evidence at trial”). Thus, at retrial, I would not allow introduction of the

        attempted murder conviction. Williams, 161 Ill. 2d at 39 (“[t]he focus” should be “on crimes

        which bear upon defendant’s truthfulness as a witness”).

¶ 136          In addition, Rule 804(b)(2) provides that the hearsay rule does not bar, “[i]n a prosecution

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

        imminent, concerning the cause or circumstances of what the declarant believed to be impending

        death.” Ill. R. Evid. 804(b)(2) (eff. Jan. 1, 2011). Whether a victim is able to breathe is one of the

        key facts that courts consider in determining whether a victim knows death may be imminent.

        People v. Gilmore, 356 Ill. App. 3d 1023, 1025, 1034-35 (2005); People v. Walker, 262 Ill. App.

        3d 796, 801 (1994); People v. Warren, 259 Ill. 213, 216 (1913). This is no surprise since poets,

        for hundreds of years, have equated breath with life and its absence with death. E.g., William

        Shakespeare, Romeo and Juliet, act 5, sc. 3 (“Death, that hath suck’d the honey of thy breath

        ***.”). While a modern person knows that CPR is an option, he or she also knows that, if a lack

        of breathing is not arrested quickly, the outcome is not good. In the case at bar, the victim’s


                                                         43
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        statement should have been admitted as a dying declaration, after the victim complained to the

        attending paramedic that he could not breathe and then lost consciousness a few minutes later

        and died in the ambulance.

¶ 137           The trial court appears to have given little or no weight to the victim’s acknowledgement

        that he could no longer breathe and focused instead on the victim’s “no” response to the query of

        whether he had been shot. The trial court assumed that a “no” response proved that the victim did

        not know he had multiple bullet wounds in his own abdomen. However, a “no” response could

        also be consistent with a bystander incident. 7 A person who was asked whether he had been shot

        could have understood this question to mean whether he was the intended victim or whether he

        had been shot at. The victim’s “no” response would then be consistent with his subsequent “no”

        to the question of whether defendant was the shooter.

¶ 138           The trial court’s assumption conflicted with the manifest weight of the evidence, which

        showed that the victim knew he could not breathe, that the victim had multiple bullet wounds in

        his abdomen, and that the victim asserted defendant was not the shooter. 8 See People v. Lee,

        2012 IL App (1st) 101851, ¶ 25 (while the trial court’s factual determinations may be reversed if

        against the manifest weight of the evidence, the trial court’s legal determination is reviewed de

        novo). As a result, I would admit this evidence at the retrial as a dying declaration.




                7
                  Although there is evidence in the record to suggest the absence of close-range firing, a “no”
        response could also be consistent with a suicide or accident. A person, who either attempted suicide or
        had a gun accident and was asked “were you shot,” could understand the question as meaning “were you
        shot by someone” and answer no. No gunshot residue testing was performed on the victim’s hands. The
        “no” response would then be consistent with the victim’s subsequent “no” answer to the paramedic’s
        follow-up question of whether the driver shot him.
                8
                  The State argues that the victim never stated that he was dying nor did the evidence suggest that
        the paramedic told the victim that he was dying. However, when the State asked the paramedic “[a]nd you
        never told [the victim] that he was going to die soon, did you,” the paramedic responded, “There’s no way
        I can know that for sure.”
                                                            44
        1-13-0988


¶ 139          In the alternative, I would find that the statement also qualifies as an excited utterance.

        Earlier this year, our supreme court set forth the requirements for an excited utterance, as

        follows: “(1) the occurrence of an event or condition sufficiently startling to produce a

        spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) a statement

        relating to the circumstances of the occurrence.” People v. Lerma, 2016 IL 118496, ¶ 5 n.1.

¶ 140          In the case at bar, the victim’s statement satisfies all three factors mentioned in Lerma.

        First, the victim’s realization that he could no longer breathe qualifies as a “condition sufficiently

        startling to produce a spontaneous and unreflecting statement.” Lerma, 2016 IL 118496, ¶ 5 n.1.

        The fact that the statement was made in response to a question does not destroy its spontaneity.

        People v. Burney, 2011 IL App (4th) 100343, ¶ 39 (“That a statement may be made in response

        to an inquiry does not destroy [its] spontaneity.” (citing People v. Connolly, 406 Ill. App. 3d

        1022, 1025 (2011))). In Burney, for example, a deputy sheriff asked a victim what happened, and

        she replied that a man had forced his way into her house and she provided a description of the

        man. The appellate court ruled that the fact that the victim “responded to [the deputy’s] question

        as to what happened did not destroy the spontaneity of the statements.” Burney, 2011 IL App

        (4th) 100343, ¶ 42. Similarly, in the case at bar, the statement at issue was made in response to

        questioning by a paramedic. The paramedic asked the victim whether the driver shot him, and

        the victim responded no. Like the victim in Burney, the victim in the case at bar “was still

        affected” (Burney, 2011 IL App (4th) 100343, ¶ 42) by the event or condition, and thus the

        paramedic’s question “did not destroy the spontaneity of the statements.” Burney, 2011 IL App

        (4th) 100343, ¶ 42. See also People v. Damen, 28 Ill. 2d 464, 470 (1963) (the fact that an officer

        asked the complainant “what happened” in a rape case was insufficient to destroy the statement’s

        spontaneity).


                                                         45
        1-13-0988


¶ 141          Second, there was no time to fabricate, between when the victim realized he could no

        longer breathe and when he made the statement. Lerma, 2016 IL 118496, ¶ 5 n.1. According to

        the paramedic, the victim’s labored breathing occurred simultaneously with the victim’s denial

        that defendant shot him. Third, the victim’s “statement” that defendant did not shoot him

        “relat[ed] to the circumstances of the occurrence,” namely, the circumstances concerning why he

        could no longer breathe. Lerma, 2016 IL 118496, ¶ 5 n.1. Thus, the statement also qualifies as an

        excited utterance.

¶ 142          In conclusion, I would reverse and remand for a retrial, and I would admit the dying

        declaration but not the attempted murder conviction at the retrial.




                                                        46
