{ "id": 3599340, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCUS WEST, Defendant-Appellant", "name_abbreviation": "People v. West", "decision_date": "2005-01-05", "docket_number": "No. 1\u201402\u20142358", "first_page": "28", "last_page": "42", "citations": [ { "type": "official", "cite": "355 Ill. App. 3d 28" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "492 N.E.2d 1303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "112 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538496 ], "year": 1986, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0111-01" ] }, { "cite": "730 N.E.2d 628", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. 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Pa. L. Rev. 1171", "category": "journals:journal", "reporter": "U. Pa. L. Rev.", "year": 2002, "pin_cites": [ { "page": "1242" } ], "opinion_index": 0 }, { "cite": "99 P.3d 1262", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "1266" } ], "opinion_index": 0 }, { "cite": "124 Wash. App. 92", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 684154 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/wash-app/124/0092-01" ] }, { "cite": "4 Misc. 3d 575", "category": "reporters:state", "reporter": "Misc. 3d", "case_ids": [ 1323746 ], "weight": 10, "year": 2004, "pin_cites": [ { "page": "583" }, { "page": "407" }, { "page": "595" }, { "page": "415" }, { "page": "596" }, { "page": "416" }, { "page": "595-96" }, { "page": "415-16" }, { "page": "596" }, { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/misc3d/4/0575-01" ] }, { "cite": "19 Cal. Rptr. 3d 574", "category": "reporters:state", "reporter": "Cal. Rptr. 3d", "year": 2004, "pin_cites": [ { "parenthetical": "holding that statements contained on a 911 tape did not constitute testimonial evidence" } ], "opinion_index": 0 }, { "cite": "122 Cal. App. 4th 1417", "category": "reporters:state", "reporter": "Cal. App. 4th", "year": 2004, "pin_cites": [ { "parenthetical": "holding that statements contained on a 911 tape did not constitute testimonial evidence" } ], "opinion_index": 0 }, { "cite": "3 Misc. 3d 739", "category": "reporters:state", "reporter": "Misc. 3d", "case_ids": [ 82240 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "744-45" }, { "page": "879" }, { "page": "746" }, { "page": "879-80" }, { "page": "746" }, { "page": "880" } ], "opinion_index": 0, "case_paths": [ "/misc3d/3/0739-01" ] }, { "cite": "815 N.E.2d 789", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "351 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083803 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "992" }, { "page": "993" }, { "page": "993" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0976-01" ] }, { "cite": "20 Cal. Rptr. 3d 161", "category": "reporters:state", "reporter": "Cal. Rptr. 3d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "173-74" } ], "opinion_index": 0 }, { "cite": "123 Cal. App. 4th 406", "category": "reporters:state", "reporter": "Cal. App. 4th", "weight": 2, "year": 2004, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "502 U.S. 346", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6226656 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "365" }, { "page": "865" }, { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/us/502/0346-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" }, { "page": "2539" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 30, "year": 2004, "pin_cites": [ { "page": "68" }, { "page": "203" }, { "page": "1374" }, { "page": "68" }, { "page": "203" }, { "page": "1374" }, { "page": "51" }, { "page": "193" }, { "page": "1364" }, { "page": "51-52" }, { "page": "193" }, { "page": "1364" }, { "page": "52" }, { "page": "193" }, { "page": "1364" }, { "page": "53" }, { "page": "194" }, { "page": "1365" }, { "page": "53" }, { "page": "194" }, { "page": "1365" }, { "page": "53" }, { "page": "194" }, { "page": "1365" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] } ], "analysis": { "cardinality": 1244, "char_count": 34288, "ocr_confidence": 0.707, "pagerank": { "raw": 2.0460481610898134e-07, "percentile": 0.7548115739566283 }, "sha256": "e786990a0e8dba9fffe5ad04c46b308e883559cac5b892767703bd114a716dcc", "simhash": "1:3aa2f78c3e18abc7", "word_count": 5531 }, "last_updated": "2023-07-14T21:57:27.413698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCUS WEST, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOFFMAN\ndelivered the opinion of the court:\nFollowing a jury trial, the defendant, Marcus West, was convicted of five counts of aggravated criminal sexual assault (720 ILCS 5/12\u2014 14(a)(4) (West 2002)), and one count each of aggravated vehicular hijacking (720 ILCS 5/18 \u2014 4(a)(3) (West 2002)), armed robbery (720 ILCS 5/18 \u2014 2(a) (West 2002)), and kidnaping (720 ILCS 5/10 \u2014 1(a)(1) (West 2002)). He was sentenced to consecutive terms of 30 years\u2019 imprisonment on three of the aggravated criminal sexual assault convictions and the armed robbery conviction, concurrent terms of 30 years\u2019 imprisonment for the remaining aggravated criminal sexual assault and aggravated vehicular hijacking convictions, and a concurrent term of 7 years\u2019 imprisonment for the kidnaping conviction. On appeal, the defendant argues that the admission at trial of numerous out-of-court testimonial statements made by the victim violated his sixth amendment right of confrontation (U.S. Const., amend. VI), and that the trial court erred in admitting certain testimony at his sentencing hearing. Alternatively, the defendant argues that several of the victim\u2019s statements were improperly admitted under the spontaneous declaration exception to the hearsay rule. For the reasons that follow, we reverse and remand for a new trial.\nIn the evening of March 19, 1998, the victim, M.M., was operating her cab when two male passengers, one of whom was armed with a gun, kidnaped, robbed, and sexually assaulted her. The defendant was arrested while driving M.M.\u2019s cab shortly thereafter and charged, along with codefendant Marvin Yates, with numerous counts of aggravated criminal sexual assault, aggravated kidnaping, kidnaping, attempted murder, armed robbery and aggravated vehicular hijacking.\nPrior to trial, the State filed a motion in limine seeking a ruling on the admissibility of several statements made by M.M. to: Dorothy Jackson, a woman from whom she received help immediately following the assault; a treating nurse and doctor; and three police officers. The motion further stated that M.M. was unavailable to testify at trial because she was murdered on May 14, 1998. The State also sought to introduce a tape recording of the 911 call made after the assault. The defendant responded with a motion in limine which sought to exclude M.M.\u2019s out-of-court statements as hearsay. Following a hearing, the trial court found the statements admissible under the spontaneous declaration and statement to medical personnel for purposes of medical treatment (725 ILCS 5/115 \u2014 13 (West 2002)) exceptions to the hearsay rule.\nThe matter then proceeded to trial, during which the State presented the following evidence. Jackson testified that, on March 19, 1998, she was in her house at 7058 South Throop Street when she heard her doorbell ring. As she approached the front door, Jackson heard a woman cry out, \u201cHelp me, I\u2019ve been raped.\u201d Jackson opened the door, helped the woman inside and, as she was trying to calm her, asked what happened. The woman replied that she was raped by two, possibly six men, in two separate locations, and that the men had taken her vehicle, driver\u2019s license, purse, and jewelry. The woman also told Jackson that she was a cabdriver and gave a description of her vehicle.\nJackson then placed a call to a 911 dispatcher and relayed the information she had just learned. Jackson stated that, during the call, she would ask the woman questions posed by the dispatcher, and provide the dispatcher with the woman\u2019s answers.\nThe State then introduced into evidence a tape recording and transcript of the 911 call. During the call, which was played for the jury, the dispatcher is heard posing numerous questions to Jackson. These questions began with inquiries into what was wrong, whether M.M. was in need of an ambulance, where she was located, and what her age was. The dispatcher then asked a series of questions relating to M.M.\u2019s vehicle and the direction in which the assailants went \u201cin order to get the police over there to help.\u201d M.M. can be heard on the recording answering some of the dispatcher\u2019s questions and stating that her assailants took several items of her personal property.\nChicago police officer LaSandra Harrell testified that, on March 19, 1998, she responded to a \u201ccall for help\u201d at 7058 South Throop Street, where she found M.M. \u201cballed up like a little child.\u201d The officer approached M.M., who told her that she had been raped at gunpoint several times by four men. She also told Officer Harrell that the main assailant was wearing green pants and that he had taken her red 1993 Pontiac Grand Am. The officer relayed this information to her partner who immediately sent a message over the police radio containing the information provided by M.M.\nOfficer Harrell stated that she followed M.M. to the hospital where she began to question her about the incident. In response to the officer\u2019s questions, M.M. stated that she received instructions to pick up two men and drive them to the 5700 block of South Maplewood Avenue. After completing the drive and requesting her fare, one of the men (first offender), who was wearing green pants, put a gun to the base of her neck and took her coin purse, necklace, watch, and earrings. The first offender then forced her to perform oral sex on him and the other man (second offender) in the vehicle before he drove to a store where the second offender purchased a box of condoms. M.M. told the officer that she was then driven to an abandoned garage where both men had vaginal sex with her. The first offender then drove to another garage where the two men, and another man who had been picked up along the way, had vaginal sex with her. Following this assault, the men took her driver\u2019s license, and the first offender threatened that he would kill her and her family if she told anyone what happened. She was eventually able to escape and run to a house for help.\nChicago police officer Kevin White testified that, on March 19, 1998, at approximately 11:24 p.m., he observed a red Pontiac Grand Am illegally pass his undercover vehicle and drive through a red light. The officer pursued the vehicle for several blocks, eventually arresting the driver of the vehicle after engaging in a foot chase. The driver, whom Officer White identified in court as the defendant, was wearing green pants and a white T-shirt that appeared to have bloodstains on it. The Grand Am was subsequently identified as being registered to M.M., and a custodial search of the defendant revealed a watch, necklace, and one earring.\nSusanna Sibug, an emergency room nurse, testified that she spoke to M.M. in the hospital shortly before midnight on March 19, 1998. Sibug stated that M.M. told her that she had responded to a call to pick up some passengers who had specifically requested a female cabdriver. M.M. told Sibug that, after driving the passengers to their destination, they began to hit her and threaten her with a gun. M.M. then recounted for Sibug the ways in which she was physically and sexually assaulted and described her assailants as black males in their teens or early twenties.\nDr. Andrew Labrador testified that he was M.M.\u2019s emergency room physician. The doctor stated that he initiated his examination of M.M. by asking her what happened. She responded with a description of how she had obtained her injuries and how she had been sexually assaulted. Dr. Labrador performed a physical examination of M.M. and, with Sibug\u2019s assistance, prepared a sexual assault kit. The doctor testified that his examination revealed numerous abrasions to M.M.\u2019s face, right hand, hips, knees, back, and chest.\nThe State also presented the testimony of Officer Patricia Kane and Detective Daniel Mclnerney. The majority of their testimony concerned the various statements M.M. provided in response to their independent questioning of her at the hospital. These statements included descriptions of the defendant and the nature of his actions, and were substantially similar to, although more detailed than, the information M.M. provided Officer Harrell at the hospital.\nFinally, the State introduced physical and genetic evidence obtained from M.M., her vehicle, the defendant, and the two areas where the assaults took place. This evidence showed that DNA profiles from M.M.\u2019s vaginal swab and the semen stains found on her panties and leggings matched the DNA profile of the defendant. Further, a DNA profile taken from a blood sample found on the shirt the defendant was wearing at the time of his arrest matched M.M.\u2019s DNA profile.\nFollowing deliberations, the jury returned guilty verdicts on five counts of aggravated criminal sexual assault, and one count each of aggravated vehicular hijacking, armed robbery, and kidnaping. The court entered judgment on the verdicts and continued the matter for sentencing. At the sentencing hearing, the State presented in aggravation evidence of the defendant\u2019s prior bad acts. These included statements by a correctional officer who had investigated the defendant\u2019s alleged involvement in two fights while he was awaiting trial and testimony by a Chicago police detective who had investigated the defendant\u2019s alleged involvement in the assault of a 13-year-old girl in 1995. Neither the officer nor the detective had witnessed the events to which they testified. Following arguments, the court sentenced the defendant to consecutive terms of 30 years\u2019 imprisonment on three of the aggravated criminal sexual assault convictions and the armed robbery conviction, concurrent terms of 30 years\u2019 imprisonment for the remaining aggravated criminal sexual assault and aggravated vehicular hijacking convictions, and a concurrent term of 7 years\u2019 imprisonment for the kidnaping conviction. The defendant filed motions for a new trial and reconsideration of his sentence. Both motions were denied, and this appeal followed.\nCiting Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the defendant contends that M.M.\u2019s statements to Jackson, the 911 operator, Officers Harrell and Kane, Detective Mclnerney, Sibug, and Dr. Labrador constitute testimonial evidence. He argues that their admission at trial, in the absence of an opportunity to cross-examine M.M., violated his constitutional right of confrontation.\nThe sixth amendment\u2019s confrontation clause provides that, \u201c[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.\u201d U.S. Const., amend. VI. Until recently, an unavailable witness\u2019s out-of-court statement could satisfy sixth amendment scrutiny, and be admitted at trial, so long as it had an adequate indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980). In Crawford, the Supreme Court abandoned this reliability framework in relation to testimonial statements. In its place, the Court held that the confrontation clause bars out-of-court testimonial statements unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant, regardless of whether the court finds adequate indicia of reliability. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Although the Crawford Court left \u201cfor another day any effort to spell out a comprehensive definition of \u2018testimonial\u2019 \u201d (Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374), it did provide several examples of what it termed \u201c[vjarious formulations of [the] core class of \u2018testimonial\u2019 statements\u201d (Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364). These include: (1) \u201c \u2018ex parte in-court testimony or its functional equivalent \u2014 that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially\u2019 \u201d (quoting Brief for Petitioner at 23); (2) \u201c \u2018extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions\u2019 \u201d (quoting White v. Illinois, 502 U.S. 346, 365, 116 L. Ed. 2d 848, 865, 112 S. Ct. 736, 747 (1992)); (3) \u201c \u2018statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial\u2019 \u201d (quoting Brief for National Association of Criminal Defense Lawyers as amici curiae at 3); and (4) \u201c[statements taken by police officers in the course of interrogations.\u201d Crawford, 541 U.S. at 51-52, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364.\nThe defendant first contends that M.M.\u2019s statements to the three officers at the hospital are testimonial in nature because they were taken for law enforcement purposes and that they should not have been admitted at his trial. We agree.\nAlthough Crawford failed to precisely define testimonial evidence, the Court was clear in at least one respect: statements taken by police officers in the course of an interrogation are considered testimonial \u201cunder even a narrow standard.\u201d Crawford, 541 U.S. at 52, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364. Moreover, according to Crawford, the term \u201cinterrogation\u201d is to be viewed in a colloquial, rather than a technical, sense. Crawford, 541 U.S. at 53 n.4, 158 L. Ed. 2d at 194 n.4, 124 S. Ct. at 1365 n.4.\nIn this case, at the time M.M. was questioned at the hospital, the defendant was already in custody and the officers possessed some knowledge of his alleged involvement in the assault. Their questioning of M.M. was conducted for the purpose of further investigating the defendant\u2019s involvement and to gather evidence for use in a criminal prosecution. Accordingly, the officers asked specific, purposeful questions and were in turn provided with detailed descriptions of the events that transpired and the defendant\u2019s involvement. These investigative, evidence-producing actions bore statements which, if used to convict the defendant, would implicate the central concerns underlying the confrontation clause. Crawford, 541 U.S. at 53, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365. Therefore, we find that the statements M.M. provided at the hospital to Officers Harrell and Kane and Detective Mclnerney are testimonial in nature. Because M.M. was unavailable to testify at trial and the defendant did not have a prior opportunity to cross-examine her, these statements were inadmissible.\nWe turn now to the statement M.M. provided to Officer Harrell at Jackson\u2019s house. Unlike the statements elicited by the officers at the hospital, the statement at issue here was obtained in response to the officer\u2019s preliminary task of attending to the medical concerns of a victim shortly after the commission of an offense. We believe that this distinction is controlling in our determination of whether the statement is testimonial in nature.\nAlthough there has been no Illinois case on point, we are persuaded by the reasoning of the court in People v. Kilday, 123 Cal. App. 4th 406, 20 Cal. Rptr. 3d 161 (2004). In Kilday, the defendant raised Crawford challenges to three separate statements the victim made to several police officers, each of which described the nature of an alleged assault and implicated the defendant as the assailant. Two of these statements, which were made after the victim\u2019s safety and medical concerns were attended to and for the purpose of obtaining evidence in anticipation of a potential criminal prosecution, were found to constitute testimonial evidence. However, a third statement, which was provided at the scene of the alleged crime to two responding officers upon their arrival, was found not to be testimonial in nature. In reaching this decision, the Kilday court first noted that when the officers encountered the victim she was frightened and upset, the area was unsecured, and the situation they were entering was uncertain. Further, the responding officers were unaware of the nature of the crime, the identity of the alleged assailant, or the medical concerns of the victim. Based on this evidence, the court concluded:\n\u201c[The responding officers] were not producing evidence in anticipation of a potential criminal prosecution in eliciting basic facts from [the victim] about the nature and cause of her injuries. In reaching this conclusion, we do not adopt a blanket rule that all statements obtained from victims or witnesses by police officers responding to emergency calls are necessarily nontestimonial. The determination [of] whether a statement obtained through police questioning in the field is testimonial requires a case-specific, fact-based inquiry. Under Crawford, this inquiry must center around whether the officer involved was acting in an investigative capacity to produce evidence in anticipation of a potential criminal prosecution. Here, where the responding officers were still principally in the process of accomplishing the preliminary tasks of securing and assessing the scene, we conclude that the statement elicited is not testimonial.\u201d Kilday, 123 Cal. App. 4th at 422, 20 Cal. Rptr. 3d at 173-74.\nIn this case, we similarly find that M.M.\u2019s statement to Officer Harrell at Jackson\u2019s house is not testimonial in nature. When the officer arrived at Jackson\u2019s house, she did so in response to a \u201ccall for help.\u201d Upon arriving, Officer Harrell encountered M.M., whom she described as crying and having a \u201clook of fear on her.\u201d As in Kilday, there is no indication in the record here that Officer Harrell was aware of the nature of the crime, the identity of the alleged assailant, or the medical concerns of the victim. The questions posed by the officer were preliminary in nature and for the purpose of attending to M.M.\u2019s medical concerns, not for the purpose of producing evidence in anticipation of a potential criminal prosecution. Therefore, we find that M.M.\u2019s responses are not testimonial in nature and that they were properly admitted.\nThe defendant next contends that all of the statements M.M. made to Sibug and Dr. Labrador are testimonial in nature because they were obtained in anticipation of a potential criminal prosecution. A similar argument was made to this court in In re T.T., 351 Ill. App. 3d 976, 815 N.E.2d 789 (2004).\nIn In re T.T., the respondent raised a Crawford challenge to the admission at trial of the victim\u2019s hearsay statements to a doctor who had examined her. We held that the victim\u2019s statements describing the cause of her symptoms or pain were not testimonial in nature, while those statements to the doctor identifying the respondent as the assailant were testimonial in nature. In re T.T., 351 Ill. App. 3d at 992. In so finding, we reasoned:\n\u201c[A] victim\u2019s statements to medical personnel regarding \u2018descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof [citation] are not testimonial in nature where such statements do not accuse or identify the perpetrator of the assault. [The victim\u2019s] statements explaining how she was penetrated, the pain, and the offender\u2019s use of a lubricant are relevant in assessing how [the doctor] reached her opinion that [the victim] sustained sexual abuse and are in accord with the statutory hearsay exception for statements, made by a patient with a selfish interest in treatment, for the purpose of medical diagnosis and treatment. Those statements were not accusatory against respondent at the time made and, thus, do not trigger enhanced protection under the confrontation clause.\u201d In re T.T., 351 Ill. App. 3d at 993.\nWe find no reason to deviate from the holding in In re T.T. and similarly find that M.M.\u2019s statements to Sibug and Dr. Labrador regarding the nature of the alleged attack and the cause of her symptoms and pain remain governed by the medical treatment exception to the hearsay rule (725 ILCS 5/115 \u2014 13 (West 2002)), and that they were properly admitted at trial. The remainder of M.M.\u2019s statements to Sibug and Dr. Labrador concerning fault or identity, however, \u201cimplicate the core concerns protected by the confrontation clause.\u201d In re T.T., 351 Ill. App. 3d at 993. Thus, we find that those portions of M.M.\u2019s statements to Sibug and Dr. Labrador which identify the defendant as her assailant are testimonial in nature, and their admission at trial violated the defendant\u2019s right of confrontation.\nThe defendant next contends that the trial court erred in admitting M.M.\u2019s statements to the 911 dispatcher. The defendant claims that the dispatcher was seeking information fashioned to apprehend and prosecute the alleged offenders by posing questions meant to ascertain their physical descriptions, the type of vehicle they fled in, and the direction of their flight. According to the defendant, the dispatcher was interrogating M.M. and, therefore, her responses are testimonial in nature.\nOnce again, although there are no Illinois cases on point, we are guided by several decisions from other jurisdictions. In People v. Moscat, 3 Misc. 3d 739, 744-45, 777 N.Y.S.2d 875, 879 (N.Y. Crim. Ct. 2004), the court held that the victim\u2019s statement on a 911 recording was not testimonial in nature because her call for help was \u201cessentially different in nature than the \u2018testimonial\u2019 materials that Crawford tells us the Confrontation Clause was designed to exclude.\u201d In so finding, the court stated that the typically \u201churried and panicked\u201d conversation between an injured victim and a dispatcher is simply not equivalent to the formal pretrial examinations to which the confrontation clause was directed. Although those who provide a formal statement, deposition, or affidavit are conscious that they are bearing witness, and that their statement may be used in a potential criminal proceeding, an individual who has just been injured \u201cis not contemplating being a \u2018witness\u2019 in future legal proceedings; she is usually trying simply to save her own life.\u201d Moscat, 3 Misc. 3d at 746, 777 N.Y.S.2d at 879-80. Therefore, the court concluded, because the caller is not \u201cbearing witness,\u201d a 911 call is not testimonial in nature, and it may be received in evidence without offending the confrontation clause. Moscat, 3 Misc. 3d at 746, 777 N.Y.S.2d at 880. See also People v. Caudillo, 122 Cal. App. 4th 1417, 19 Cal. Rptr. 3d 574 (2004) (holding that statements contained on a 911 tape did not constitute testimonial evidence).\nIn reaching a different conclusion, the court in People v. Cortes, 4 Misc. 3d 575, 583, 781 N.Y.S.2d 401, 407 (N.Y. Sup. Ct. 2004), held that the questions posed by the 911 dispatcher fell within Crawford\u2019s definition of interrogation and, thus, produced a statement which was testimonial in nature. As the court explained:\n\u201cWhen a 911 call is made to report a crime and supply information about the circumstances and the people involved, the purpose of the information is for investigation, prosecution, and potential use at a judicial proceeding; it makes no difference what the caller believes.\n*** [A]n objective reasonable person knows that when he or she reports a crime the statement will be used in an investigation and at proceedings relating to a prosecution.\u201d Cortes, 4 Misc. 3d at 595, 781 N.Y.S.2d at 415.\nThe Cortes court concluded that the purpose of the 911 call at issue was to invoke \u201cpolice action and the prosecutorial process\u201d and, therefore, the defendant was entitled to confront the declarant. Cortes, 4 Misc. 3d at 596, 781 N.Y.S.2d at 416.\nFinally, in People v. Powers, 124 Wash. App. 92, 99 P.3d 1262 (Wash. Ct. App. 2004), the court, after examining, inter alia, Moscat and Cortes, found that the 911 recording at issue was testimonial in nature. The court first rejected a bright-line rule that all 911 recordings were nontestimonial, opting instead to employ a case-by-case analysis into whether the statements contained on the recording originated from interrogation. The court then examined the call and found that it was neither \u201cpart of the criminal incident itself\u2019 nor a request for help. Rather, the court found that the call was made for the purpose of reporting a criminal violation and to assist in the apprehension and prosecution of the offender. Accordingly, the statements contained on the 911 recording were held to be testimonial in nature. Powers, 124 Wash. App. at 102, 99 P.3d at 1266.\nWe find Moscat, Cortes and Powers helpful in several respects. First, as in Powers, we reject any bright-line rule which would hold a 911 call testimonial or not testimonial in nature. Rather, we believe that a court should determine, on a case-by-case basis, whether the statement made to the 911 dispatcher was: (1) volunteered for the purpose of initiating police action or criminal prosecution; or (2) provided in response to an interrogation, the purpose of which was to gather evidence for use in a criminal prosecution. In the first instance, the statement is testimonial in nature because an objective individual would reasonably believe that when he or she reports a crime he or she is \u201cbearing witness\u201d and that the statement will be available for use at future criminal proceedings. Cortes, 4 Misc. 3d at 595-96, 781 N.Y.S.2d at 415-16. In the later case, the statement is testimonial in nature because it is the product of evidence-producing questions, the responses to which, if used to convict a defendant, would implicate the central concerns underlying the confrontation clause. Crawford, 541 U.S. at 53, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365. Second, in performing this analysis, a court should examine a caller\u2019s statement in the same manner as it would a victim\u2019s statement to a treating medical professional. Accordingly, statements that are made \u201cto gain immediate official assistance in ending or relieving an exigent, perhaps dangerous, situation\u201d (R. Friedman and B. McCormack, Dial-In Testimony, 150 U. Pa. L. Rev. 1171, 1242 (2002)) are comparable to those made to medical personnel regarding \u201cdescriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof\u201d (725 ILCS 5/115 \u2014 13 (West 2002)) and, as such, are not testimonial in nature. However, statements volunteered for the purpose of \u201cinvoking police action and the prosecutorial process\u201d (Cortes, 4 Misc. 3d at 596, 781 N.Y.S.2d at 416), or responses to questions posed for the purpose of collecting information \u201cuseful to the criminal justice system\u201d (150 U. Pa. L. Rev. at 1242), are testimonial in nature.\nApplying these principles to the matter at hand, we find that those statements made to the 911 dispatcher concerning the nature of the alleged attack, M.M.\u2019s medical needs, and her age and location are not testimonial in nature and were properly admitted at trial. These statements were given immediately after M.M. was brutally assaulted and in a state of shock for the purpose of requesting medical and police assistance. Further, the dispatcher\u2019s questions concerning what was wrong, whether M.M. was in need of an ambulance, what her age was, and where she was located were posed in order to gather information about the situation and to secure medical attention for her, not to produce evidence in anticipation of a potential criminal prosecution. However, those statements made by M.M. that described her vehicle, the direction in which her assailants fled, and the items of personal property they took are testimonial in nature. These statements were made in response to questions posed by the dispatcher for the stated purpose of involving the police. As such, M.M.\u2019s responses are comparable to those obtained through official questioning for the purpose of producing evidence in anticipation of a potential criminal proceeding, and their use at trial to secure the defendant\u2019s conviction implicates the central concerns underlying the confrontation clause. Crawford, 541 U.S. at 53, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365. Accordingly, we find that the portion of M.M.\u2019s statement to the dispatcher which described her vehicle, the direction in which her assailants fled, and the items of personal property they took are testimonial in nature, and their admission at trial violated the defendant\u2019s right of confrontation.\nFinally, the defendant contends that the statements M.M. made to Jackson, \u201cwith the exception of the immediate outcry of \u2018Help me, I\u2019ve been raped,\u2019 \u201d are testimonial in nature. The defendant argues that M.M.\u2019s statements to Jackson were \u201cindirectly made to a police or government official.\u201d We disagree.\nHere, the defendant attempts to characterize Jackson as an agent of the government because she acted as an intermediary between M.M. and the 911 dispatcher. We believe, however, that Jackson was no more than a concerned citizen and that her actions in relaying information to the 911 dispatcher do not transform her into an agent of the government. When M.M. appeared at Jackson\u2019s door, she was crying for help. Jackson took M.M. into her home and asked her what had happened. The purpose behind Jackson\u2019s questions was clearly altruistic and, as such, we fail to see how she was acting as a governmental officer seeking evidence in anticipation of a potential criminal prosecution. Thus, we find that M.M.\u2019s statements to Jackson do not implicate the central concerns underlying the confrontation clause and, accordingly, are not testimonial in nature. They were therefore properly admitted at the defendant\u2019s trial.\nHaving found several violations of the defendant\u2019s right of confrontation, we must now determine if they were harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). In People v. Wilkerson, 87 Ill. 2d 151, 157, 429 N.E.2d 526 (1981), our supreme court set forth three approaches for measuring harmless error: (1) focusing on the error to determine whether it might have contributed to the conviction; (2) examining the other evidence in the case to see if overwhelming evidence supports the conviction; and (3) determining whether the evidence is cumulative or merely duplicates properly admitted evidence. Here, Officers Harrell and Kane and Detective Mclnerney testified in great detail concerning the numerous statements M.M. made at the hospital following her attack. These statements described the nature of her ordeal, identified the defendant as one of her assailants, and detailed the acts he performed. Although the physical evidence, testimony of Jackson, and M.M.\u2019s statements to Officer Harrell at Jackson\u2019s house provided evidence of the defendant\u2019s involvement in the commission of the various offenses, M.M.\u2019s statements to Officers Harrell and Kane and Detective Mclnerney at the hospital identified with the most specificity the acts the defendant performed. We believe there is a reasonable probability that the admission of these statements contributed to the defendant\u2019s convictions. Thus, we conclude that the confrontation clause errors in this case were not harmless beyond a reasonable doubt. Accordingly, we reverse the defendant\u2019s convictions and sentences and remand the case to the circuit court for a new trial. In so doing, we find that the evidence was sufficient to support the defendant\u2019s convictions, so that double jeopardy considerations do not prevent retrial. People v. Olivera, 164 Ill. 2d 382, 393, 647 N.E.2d 926 (1995). Due to our resolution of this issue, we find it unnecessary to address the defendant\u2019s alternative hearsay argument. However, we shall address the defendant\u2019s sentencing issue as it is likely to arise on retrial.\nThe defendant argues that the trial court erred by allowing two State witnesses to present hearsay evidence of several prior bad acts. We disagree.\nA trial court is not bound by the same rules of evidence at a sentencing hearing as it is during the guilt phase of a trial. People v. Bilski, 333 Ill. App. 3d 808, 818, 776 N.E.2d 882 (2002). For example, hearsay evidence is admissible so long as it is relevant and reliable. Bilski, 333 Ill. App. 3d at 818.\nIn this case, the State presented the testimony of a corrections officer and a Chicago police detective who had conducted investigations into the defendant\u2019s alleged commission of several criminal acts. The corrections officer described the defendant\u2019s alleged involvement in two fights which occurred during his pretrial detention. The officer\u2019s testimony was based on statements he received during his investigation from other officers and the victim of one of the fights. The detective testified concerning an investigation she conducted in 1995 into the alleged assault of a 13-year-old girl. The detective stated that the alleged victim told her the defendant had used a screwdriver to stab her and tear off her clothing, and that after the defendant was arrested he struck his arresting officers and escaped.\nWe find that evidence of the defendant\u2019s prior bad acts was properly admitted. First, the evidence is relevant to the sentencing phase because it related to the defendant\u2019s criminal history and provided insight into his character. People v. Ivy, 313 Ill. App. 3d 1011, 1019, 730 N.E.2d 628 (2000). Further, the evidence is reliable because it was based on an official investigation into the defendant\u2019s alleged involvement in a criminal offense. People v. Morgan, 112 Ill. 2d 111, 144, 492 N.E.2d 1303 (1986). Therefore, we find that the testimony of the corrections officer and detective presented at the defendant\u2019s sentencing hearing was properly admitted.\nFor the foregoing reasons, we reverse the defendant\u2019s convictions and sentences and remand the cause to the circuit court for a new trial.\nReversed and remanded.\nKARNEZIS, EJ., and SOUTH, J., concur.", "type": "majority", "author": "JUSTICE HOFFMAN" } ], "attorneys": [ "Michael J. Pelletier and Geneva L. Penson, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet C. Mahoney, Veronica C. Malavia, and Susan Schierl Sullivan, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCUS WEST, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201402\u20142358\nOpinion filed January 5, 2005.\nMichael J. Pelletier and Geneva L. Penson, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet C. Mahoney, Veronica C. Malavia, and Susan Schierl Sullivan, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0028-01", "first_page_order": 46, "last_page_order": 60 }