People v. McCoy

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                                          Appellate Court                          Date: 2016.11.29
                                                                                   13:53:19 -06'00'




                             People v. McCoy, 2016 IL App (1st) 130988



Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     CARL McCOY, Defendant-Appellant.



District & No.              First District, Fourth Division
                            Docket No. 1-13-0988


Filed                       September 15, 2016



Decision Under              Appeal from the Circuit Court of Cook County, No. 09-CR-613; the
Review                      Hon. Diane Gordon Cannon, Judge, presiding.



Judgment                    Reversed and remanded.



Counsel on                  Michael J. Pelletier, Alan D. Goldberg, Patricia Mysza, and Gabrielle
Appeal                      Green, all of State Appellate Defender’s Office, of Chicago, for
                            appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                            Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the
                            People.


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

        
         This case was recently reassigned to Justice Burke.
                                              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 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.
¶2       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.

¶3                                         I. BACKGROUND
¶4                                              A. Pretrial
¶5       In December 2008, a grand jury returned an indictment charging defendant with, inter alia,
     the first degree murder of Culverson.
¶6       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.
¶7       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
     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.
¶8       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



                                                  -2-
       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.
¶9          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. 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.”
¶ 10        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.

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

¶ 13                                      1. The State’s Evidence
¶ 14       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, Latunya, 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 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.


           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.”

                                                      -3-
¶ 15        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.
¶ 16        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.
¶ 17        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.
¶ 18        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.
¶ 19        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
       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.
¶ 20        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.
¶ 21        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.
¶ 22        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.
¶ 23        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



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       walk-through of the scene, looking for firearm evidence or other physical evidence. Ryan’s
       partner also videotaped and photographed the scene.
¶ 24       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.
¶ 25       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.
¶ 26       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.
¶ 27       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 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.
¶ 28       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.
¶ 29       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


                                                    -5-
       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.
¶ 30        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.
¶ 31        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.
¶ 32        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.

¶ 33                                      2. Defendant’s Evidence
¶ 34       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.
¶ 35       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.
¶ 36       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.
¶ 37       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


                                                    -6-
       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 backseat, and beer
       spilled out onto the seat.
¶ 38       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 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.
¶ 39       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.
¶ 40       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.
¶ 41       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.
                    [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.


                                                   -7-
                   [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.
                   [ASSISTANT STATE’S ATTORNEY]: That’s why I’m asking you did you say
               that to him?
                   [DEFENDANT]: No.”
¶ 42       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.

¶ 43                                 3. The State’s Rebuttal Evidence
¶ 44       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.
¶ 45       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.”

¶ 46                                  4. Closing Arguments and Verdict
¶ 47        Following the presentation of evidence, the matter proceeded to closing arguments. During
       its argument in rebuttal, the State made the following assertion:
                    “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.




                                                   -8-
                   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.”
       Following deliberations, the jury found defendant guilty of first degree murder.

¶ 48                                C. Posttrial Motion and Sentencing
¶ 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
¶ 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

                                                    -9-
       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
       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 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

                                                   - 10 -
       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.
       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 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).

                                                    - 11 -
¶ 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 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 952 (quoting Gordon, 383 F.2d at 941). The Gordon court also noted, however, that


                                                   - 12 -
       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.2d 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.
       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

                                                   - 13 -
       where a 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.
¶ 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

           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.

                                                    - 14 -
       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, 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
¶ 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.
           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.

                                                      - 15 -
       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.” (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 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.”


                                                   - 16 -
¶ 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 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.
¶ 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.” Id. Our supreme court has explained the
       rationale behind the spontaneous declaration or excited utterance rule as follows:


                                                   - 17 -
                “ ‘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
       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
       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

           4
           The exception is referred to interchangeably as the spontaneous declaration and excited utterance
       exception. See, e.g., House, 141 Ill. 2d at 381.

                                                    - 18 -
       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.
¶ 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 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


                                                   - 19 -
        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 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).


                                                     - 20 -
¶ 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
        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, 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


                                                     - 21 -
        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
¶ 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.
¶ 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

            5
              Defendant’s appellate briefs were filed prior to our supreme court’s decision in Clark, 2016 IL
        118845.
            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.

                                                         - 22 -
        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 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 ‘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.

                                                     - 23 -
¶ 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
        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 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

                                                     - 24 -
        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.
¶ 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).
            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.”

                                                      - 25 -
¶ 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.




                                                  - 26 -