dissenting:
I respectfully dissent from the opinion of my colleagues. As will appear, the evidence of defendant’s guilt was neither so clear nor so convincing as to justify disregarding the serious errors that occurred at trial. Considering the conflicting nature of the evidence as a whole, the erroneous admission of the hearsay statements of the four-year-old girl, the evidence of other crimes, as well as other errors, requires a new trial.
The gist of the majority’s opinion is that certain evidence was never refuted and because it overwhelmingly established defendant’s guilt, any errors which occurred were of no consequence. I cannot agree, but to the contrary, I believe examination of the record reveals every major aspect of the State’s case was challenged in some way by competent evidence favorable to the defense. With the evidence in conflict, matters of credibility were of vital importance at trial, and the jury was faced with the unenviable task of sorting through a myriad of stories to ascertain the truth. Yet, the credibility of defense witnesses was undermined by the improper admission of evidence of other crimes and the hearsay statement of the young girl. Whenever credibility is of such importance it is impossible for any court to gauge the extent to which the jury’s deliberations were improperly influenced by errors in admitting evidence. The majority relies on the evidence of blood types and the jailhouse admissions to support their conclusion. I believe such evidence, as well as the other evidence at trial, was conflicting.
At trial, a criminalist from the Illinois Bureau of Investigation, Sally Dillon, testified at length as to the blood type of the deceased victim, the blood type of the defendant and the blood type of two other individuals. According to the criminalist, the victim’s ABO blood grouping was found to be type AB. During Dillon’s testimony, Dr. Arthur Simmons, who had previously examined the physical evidence, was allowed to be present. Simmons is a professor of pathology at Drake University, a consultant to the Royal Canadian Mounted Police and had Ph.D. degrees in hematology and emunology (blood grouping).
In rebuttal to the testimony of the criminalist, Simmons testified at length to serious deficiencies in various procedures utilized by the State’s criminalist in determining blood types. In particular, Simmons testified that certain bacterial contamination of a decedent’s blood can occur approximately 15 hours after death and such contamination could cause the ABO blood grouping to type AB regardless of the true blood type. The blood sample from the victim was taken approximately 17 hours after death. When Simmons tested the victim’s blood sample several months after her death, he found the contaminating bacteria present. According to Simmons, the only possible way to verify the accuracy of a blood type under such circumstances was to obtain a culture from the victim’s blood and thereby determine the presence or absence of the contaminating bacteria at the time the blood type was determined. Since the State criminalist failed to do so, Simmons stated that any conclusions were unsupportable from the tests performed. Further doubt as to the victim’s ABO blood type resulted from the criminalist failing to run a test using anti-AB serum, which according to Simmons, was essential to accurately type AB blood.
The majority also relies on the admissions defendant is alleged to have made to various inmates of the county jail. One such admission is alleged to have been made to a friend of the victim’s husband who admittedly became so incensed at finding out what the defendant was charged with that he attacked the defendant. Prior to the alleged admission, the witness, who was incarcerated only during the evening hours, spent four hours in the detention cell because he was intoxicated when he reported to the jail. The other admissions were either controverted by witnesses present during the conversation or were impeached on cross-examination.
An issue at trial was whether the defendant was wearing the pair of jeans alleged to contain the decedent’s blood on the evening of the offense. The jeans had distinguishing patches on them. The State presented witnesses who claimed defendant was wearing the jeans and the defendant presented various witnesses who contradicted the State’s witnesses. Many of the witnesses on the issue for both parties were impeached to varying degrees, thereby enhancing the importance of the jury deciding the case in a setting free from error. Without relating all the evidence of a lengthy record in detail, suffice it to state I believe the evidence on other important issues was equally conflicting. The foregoing discussion of the various aspects of the evidence is not intended to suggest that defendant could not be found guilty of the offense charged, but rather to emphasize that the majority of the evidence introduced by the State was contradicted or challenged by the defendant. Such a tit for tat exchange of evidence does not suggest a clear and convincing character sufficient to overcome the serious trial errors that occurred. What has been previously said assumes the existence of trial errors. I believe the introduction of the four-year-old’s statement, and the evidence of other crimes constitutes such grievous errors.
As to the testimony of McCarthy and Gotthardt, the victims of the two extra-indictment crimes, the well-established rule is that evidence of the commission of other crimes by an accused in support of the crime charged is inadmissible, as well as sufficiently prejudicial to constitute reversible error. (People v. Gleason (1962), 36 Ill. App. 2d 15, 183 N.E.2d 523.) An exception to this general rule allows admission of evidence of other crimes when it goes to show motive, intent, identity, absence of mistake, or modus operandi. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) I cannot agree with the State’s contention that the testimony in question was admissible under the modus operandi exception.
To constitute evidence admissible under the modus operandi exception the other crimes must have “peculiar and distinctive features common to” that of the offense charged. (People v. Lehman (1955), 5 Ill. 2d 337, 343, 125 N.E.2d 506.) The evidence must establish that the crimes are “so nearly identical in method as to earmark them as the handiwork of the accused.” (People v. Osborn (1977), 53 Ill. App. 3d 312, 320, 368 N.E.2d 608, 615; McCormick, Evidence §190, at 449 (2d ed. 1972).) Contrary to the position of the trial court and the State on appeal, the other crimes’ evidence does not possess such necessary characteristics as to constitute evidence of modus operandi.
The occurrence involving McCarthy happened some 13 months prior to the charged offense and the police were unwilling to act upon her complaint. The weapon used was a ceramic vase. The complainant saw the attacker only once previously, which was earlier in the day of the attack.
The aggravated assault against Gotthardt occurred four months before the charged offense. Gotthardt was well acquainted with the defendant and according to one witness, she had previously had voluntary sexual intercourse with defendant. While the assault was made with a knife, no question of sex ever arose.
In the crime charged, defendant was a mere acquaintance of the victim through her husband. The only similarities between the crimes is that the victims were all young women who were attacked at home in the early morning hours in the same metropolitan area. Such similarities are hardly so peculiar or distinctive as to earmark all three crimes as the handiwork of the accused. Comparison of the facts surrounding each offense reveals that if anything, dissimilarities between the three crimes predominate. Such evidence of three crimes removed from one another both in time and character improperly imposed on the defendant the onerous burden of defending three independent and unrelated crimes where only one was charged. When such a situation occurs in a trial where the evidence is conflicting, the defendant’s propensity to commit crimes tends to become a focus of the jury’s deliberation. Such denies the defendant a fair opportunity to have an impartial jury determine his guilt beyond a reasonable doubt.
The error of admitting the other crimes’ evidence was aggravated in this instance by the trial court’s erroneous admission of the hearsay statement of the victim’s four-year-old daughter. While the trial court allowed the evidence in as a spontaneous declaration and as part of the res gestae, use of res gestae in this situation is wholly inappropriate and may actually inhibit reasonable analysis. (See People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.) The State on appeal has abandoned any claim of res gestae and such a position would seem appropriate in light of Poland.
No Illinois case has been called to our attention, nor am I aware of any case which has allowed into evidence as a spontaneous declaration the hearsay statement made more than two hours after the crime occurred. The statement in this case occurred approximately 12 hours after the crime.
During the trial, Officer Wittmer testified over defendant’s objection to his first encounter with Vicky Masengarb, the four-year-old daughter of the victim. The following colloquy took place some time after uniformed police officers had arrived at the scene.
“Q. What did the little girl do?
A. She raised the covers up. She had a cover over her and raised it up so that she could peek over the top.
Q. Where was she at?
A. In the bed.
Q. What did you do?
A. I asked what her name was.
Q. How did she appear to you at that time?
A. She was scared of me.
Q. You didn’t know the little girl?
A. No.
Q. What happened then when you asked that question?
A. She lowered the covers just enough to talk.
Q. What did she say?
# # #
A. I asked her her name and she said Vicky.
Q. Did you ask her anything else?
A. I asked her who lived here with her.
Q. What did she say?
A. She said ‘me, my mommy and my brother’.
Q. Did you ask her anything else?
A. I asked her where her daddy was.
Q. What did she say?
A. She said he was in jail.
Q. Did you ask her anything else?
A. I said ‘who else has been here besides you and your mommy and your brother?’
Q. What did she say?
A. ‘Rodney’.
Q. Did she indicate when he had been there?
A. I asked her that.
Q. What did she say?
A. She said ‘last night’.”
To be a spontaneous declaration the occurrence must be sufficiently startling to produce a spontaneous and unreflecting statement; there was an absence of time to fabricate; and the statement relates to the circumstances of the occurrence. People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.
As a preliminary observation I note there is a failure of any evidence showing the child was even aware that there had been any occurrence involving her mother or that she was acting under the influence of the occurrence. The location of the child’s bedroom was well apart from the rooms where the homicide took place. The first requirement of spontaneity would seem to require some knowledge of the incident which is supposed to be so startling and unusual that it substantially obviates the free will of the declarant and makes any response a part of the incident itself.
The lapse of time which occurred in this case is substantial and would have afforded an opportunity for reflection even if the child were aware of the incident occurring some 12 hours earlier. Added to these facts are the circumstances in which the statement was made by the child, i.e., in response to questions seeking to elicit precisely the facts now relied on as being spontaneous. I fail to see how the statement of the child can be deemed to have been made under such stressful circumstances that its veracity is assured. I also note the child was not called as a witness even though she was apparently available, at least in the sense that her statement was not that of a person who died thereafter. The question naturally arises that if she was incompetent to testify as a witness, would this not adversely affect the propriety of admitting her hearsay statement. Even in the case relied upon by the trial court, People v. Parisie (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310, the out-of-court statements were made no more than a few hours after the occurrence by a victim who was mortally wounded, dazed and in a state of shock. To admit the child’s statement would wholly eliminate any requirement of spontaneity.
I believe the majority’s reliance on State v. Duncan (1978), 53 Ohio St. 2d 215, 373 N.E.2d 1234, is misplaced because it in fact is supported by another and different exception to the hearsay rule. However, the quotation from Duncan in the majority opinion suggests what I believe to the the crux of this case and that is the declaration must be an “excited utterance,” a circumstance which does not exist in this case. In Duncan, where the defendant was charged with a sexual assault, the victim who testified in her own behalf about the sexual assault was six years old, and the hearsay referred to related to the victim’s making a prompt complaint after the offense had occurred. The “prompt complaint” exception to the hearsay rule in sexual assault cases is well established in this State and rests on a different basis then that relating to spontaneous declarations. Additionally, the circumstances surrounding the child’s complaint to her mother are so dissimilar to the facts in the instant case that any analogy is inappropriate. I believe the trial court erred in admitting this evidence.
I also believe there were other errors which occurred during the trial of this case. Since the argument has been made that these errors to some extent were waived because of the defendant’s failure to make appropriate objections or include them in his post-trial motion, no useful purpose would be served in discussing them in this opinion. It is sufficient to say that they cumulatively add to the effect of other errors previously discussed and offer additional support for my conclusion that a new trial is required.
Because the errors occurring at trial denied the defendant a fair opportunity for the jury to accurately assess the conflicting testimony and determine issues of credibility, I believe a new trial is required.