{ "id": 3608671, "name": "In re J.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. J.S. et al., Minors, Respondents-Appellants)", "name_abbreviation": "People v. J.S.", "decision_date": "1987-02-27", "docket_number": "Nos. 85\u20140719, 85\u20141032, 85\u20143618 cons.", "first_page": "154", "last_page": "158", "citations": [ { "type": "official", "cite": "153 Ill. App. 3d 154" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "174 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill. 2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2788568 ], "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0175-01" ] }, { "cite": "437 N.E.2d 905", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 672", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3019393 ], "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0672-01" ] }, { "cite": "309 N.E.2d 544", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405478 ], "pin_cites": [ { "page": "545-46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0536-01" ] }, { "cite": "242 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "41 Ill. 2d 102", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853046 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0102-01" ] }, { "cite": "383 N.E.2d 954", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "74 Ill. 2d 18", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2993820 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/74/0018-01" ] }, { "cite": "463 N.E.2d 139", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 527", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5677851 ], "year": 1978, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0527-01" ] } ], "analysis": { "cardinality": 499, "char_count": 8928, "ocr_confidence": 0.791, "pagerank": { "raw": 7.552284461341054e-08, "percentile": 0.44813346260727943 }, "sha256": "53b34dcfe3afab2b1bff39f2a2f864251e9fbe961ea1fd748dc856b9700211e8", "simhash": "1:9230cfe8fac306c7", "word_count": 1451 }, "last_updated": "2023-07-14T16:39:45.296283+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re J.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. J.S. et al., Minors, Respondents-Appellants)." ], "opinions": [ { "text": "PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nRespondents were charged in delinquency petitions with aggravated battery and home invasion. Following a bench trial they were found to be delinquent, adjudicated wards of the State, and committed to the Department of Corrections. On appeal respondents contend that the trial court erred in admitting into evidence complainant\u2019s preliminary hearing testimony and a statement that she made to her niece the morning after the offenses occurred.\nThe State\u2019s principal witness was Julian Samaniego, who had been charged in an information with home invasion arising out of the same incident as the minor respondents. Samaniego agreed to testify truthfully at respondents\u2019 trial in exchange for the State\u2019s promise to reduce the charge against him to burglary and to recommend a period of probation.\nSamaniego testified that at approximately 5 p.m. on February 9, 1983, he met all three respondents, whom he had known for several years, at an arcade in the vicinity of 108th and Calhoun in Chicago. One hour later they left the arcade and began walking through the public housing projects located at 105th and Yates. According to Sa-maniego, they talked about \u201cgetting some money together\u201d and agreed to break into a nearby home. Samaniego did not know the address of the house or who lived there. Samaniego stated that two of the respondents climbed through a rear window while he stayed outside in the gangway with the third respondent to watch for the police. The two respondents who had entered the residence through the rear window exited from the front door five minutes later. All four offenders then fled from the scene.\nSamaniego and respondents regrouped later that evening. One of the respondents who had gone into the home told Samaniego that he had pushed the old woman who lived there into her chair when she tried to stand up. He also told Samaniego that he used to go to the store for her.\nHelen Brooks testified that at 11 a.m. on February 10, 1983, she went to visit her 95-year-old great-aunt, Rose Hansen, who lived alone in a first-floor apartment located at 10538 South Yates in Chicago. When she arrived, Brooks, who had a key to the apartment, noticed that the chain lock had been secured on the inside of the front door, which was unusual. After Brooks was admitted Hansen told her, \u201cGirl, I\u2019ve been robbed!\u201d Hansen looked \u201cabsolutely terrified.\u201d There were bruises on her right arm from her hand to her shoulder and her wrist was broken. The bedroom window in Hansen\u2019s apartment was open and could not be closed and locked. There was no telephone in the apartment.\nThe State introduced into evidence the transcript of Rose Hansen\u2019s testimony at Julian Samaniego\u2019s preliminary hearing. Sometime after that hearing Hansen suffered a serious stroke and was unable to testify at respondents\u2019 trial. Respondents were not parties to the preliminary hearing and neither they nor their attorneys were present at that hearing. Hansen testified that at 8 p.m. on February 9, 1983, two boys came into her house through a window and knocked her down. One of them \u201csqueezed\u201d her arm and \u201cdid the damage.\u201d They left without taking anything. Hansen was unable to identify her assailants.\nRespondents denied committing the offenses charged and presented alibi defenses. One of the respondents admitted that he had stayed away from his home for several days after he discovered that the police wanted to question him. The State presented rebuttal evidence contradicting the alibis and introduced certified copies of prior findings of delinquency as to two of the respondents.\nRespondents were found to be delinquent, adjudicated wards of the State, and committed to the Department of Corrections. This appeal follows.\nRespondents, as we have noted, contend that the trial court erred in allowing the State to introduce into evidence Rose Hansen\u2019s preliminary hearing testimony and her statement to her niece that she had been robbed. Respondents argue that the preliminary hearing testimony should not have been admitted as the prior recorded testimony of an unavailable witness because they were not parties to that proceeding and neither they nor their attorneys were present at that hearing or had an opportunity to cross-examine Rose Hansen. They argue further that the statement Hansen made to her niece did not qualify as an excited utterance because it was too remote in time from the incident to which it allegedly referred.\nWe agree with respondents that Rose Hansen\u2019s preliminary hearing testimony was inadmissible. A witness\u2019 previous testimony may be admitted into evidence at a trial, as an exception to the hearsay rule, if the witness has become unavailable and the current opponent of the evidence had the opportunity to cross-examine the witness at the earlier hearing. (People v. Wilkerson (1984), 123 Ill. App. 3d 527, 534, 463 N.E.2d 139, citing Laboy v. Industrial Com. (1978), 74 Ill. 2d 18, 383 N.E.2d 954, and People v. Jackson (1968), 41 Ill. 2d 102, 242 N.E.2d 160.) In a criminal proceeding, this does not violate a defendant\u2019s constitutional right to confront his accusers. People v. Allen (1974), 56 Ill. 2d 536, 545-46, 309 N.E.2d 544.\nThe State has a three-pronged duty to fulfill before the preliminary hearing testimony of an absent witness may be admitted as substantive evidence against an accused at trial. The State must establish that the witness is unavailable at the time of trial; that the State has made a reasonably diligent, good-faith effort to procure his attendance at trial; and that the accused had an adequate opportunity to cross-examine him at the preliminary hearing. (People v. Aldaco (1982), 107 Ill. App. 3d 672, 675, 437 N.E.2d 905.) The State admittedly did not fulfill this duty in the case at bar. Respondents were not parties to Julian Samaniego\u2019s preliminary hearing and neither they nor their attorneys were present at that hearing or had an opportunity to cross-examine Rose Hansen, who testified against Samaniego. Accordingly, we conclude that Hansen\u2019s preliminary hearing testimony was not admissible at their trial.\nWe also agree with respondents that Rose Hansen\u2019s statement to her niece, Helen Brooks, that she had been robbed did not qualify as an excited utterance. Three factors are necessary to bring a statement within this exception to the hearsay rule: an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; absence of time to fabricate; and the statement must relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804.) The second and third factors are absent here.\nThe record reveals that between 15 and 17 hours elapsed between the home invasion and the statement that Rose Hansen made to her niece. There is no evidence that Brooks was the first person whom Hansen spoke with after she was injured nor was there any accounting of her activities between the time she received her injuries and when she saw her niece. More significantly, Hansen\u2019s statement that she had been robbed clearly does not relate to the circumstances of the occurrence. The State presented no evidence that Hansen had been robbed and Hansen herself testified at the preliminary hearing that the two boys who had entered her home and attacked her left without taking anything. On the basis of the record before us, we conclude that Rose Hansen\u2019s statement to her niece did not qualify as an excited utterance.\nThe State argues in the alternative that the error in admitting this evidence was harmless. We disagree. There was no direct evidence that respondents had invaded Rose Hansen\u2019s home. (Julian Samaniego could not identify the home which respondents had entered.) In the absence of Hansen\u2019s preliminary hearing testimony, there was no circumstantial evidence from which it could even be inferred that respondents had invaded her home and attacked her. Helen Brooks\u2019 testimony established only that her aunt had sustained injuries to her right arm. She could not testify as to how or when those injuries had been inflicted. On the basis of the record before us, we cannot conclude that the error in admitting the preliminary hearing testimony or the statement was harmless. Accordingly, we reverse the findings of delinquency and remand for a new trial.\nReversed and remanded.\nLORENZ and MURRAY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellants.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., and Bonnie Meyer Sloan, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "In re J.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. J.S. et al., Minors, Respondents-Appellants).\nFirst District (5th Division)\nNos. 85\u20140719, 85\u20141032, 85\u20143618 cons.\nOpinion filed February 27, 1987.\nJames J. Doherty, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellants.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., and Bonnie Meyer Sloan, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0154-01", "first_page_order": 176, "last_page_order": 180 }