{ "id": 2641760, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES CALAHAN, Defendant-Appellant", "name_abbreviation": "People v. Calahan", "decision_date": "1976-10-12", "docket_number": "No. 61958", "first_page": "994", "last_page": "1000", "citations": [ { "type": "official", "cite": "42 Ill. App. 3d 994" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "289 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393878 ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0564-01" ] }, { "cite": "245 N.E.2d 771", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. 2d 91", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848334 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0091-01" ] }, { "cite": "194 N.E.2d 280", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2823362 ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0511-01" ] }, { "cite": "288 N.E.2d 478", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "52 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5394237 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/52/0432-01" ] }, { "cite": "94 N.E.2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "406 Ill. 398", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2634527 ], "opinion_index": 0, "case_paths": [ "/ill/406/0398-01" ] } ], "analysis": { "cardinality": 838, "char_count": 15578, "ocr_confidence": 0.898, "pagerank": { "raw": 6.70200889025486e-08, "percentile": 0.4072814669890021 }, "sha256": "67989fd48bcfd0a74e4d3e230d902e0640f05af53002cdd5a0364c4bb6306e78", "simhash": "1:a7676aa86b0fafb1", "word_count": 2490 }, "last_updated": "2023-07-14T15:00:19.600233+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. CHARLES CALAHAN, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE STAMGS\ndelivered the opinion of the court:\nDefendant, Charles Calaban, was charged by indictment with the offense of murder in violation of section 9 \u2014 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 \u2014 1). Upon a jury trial defendant was found to be guilty as charged and was sentenced to a term of confinement of 75-100 years in the Illinois State Penitentiary. From entry of the judgment of conviction defendant appeals contending (1) that the trial court erred in denying defendant\u2019s motion in limine to exclude from evidence testimony characterized as a dying declaration; (2) that the prosecutor\u2019s comments during closing argument deprived defendant of a fair trial; and (3) that the evidence adduced at trial failed to establish his guilt beyond a reasonable doubt.\nWe affirm the judgment of the circuit court.\nRoderick McDuffey and Larry Phipps testified that on the evening of January 14, 1973, they and their friend Joseph Cooper were at the home of Betty McNulty, located at 15 North Oakley Avenue in Chicago, Illinois. At approximately 10:30 p.m. they left the apartment, went to a nearby tavern and purchased a six-pack of beer which the trio shared at Betty McNulty\u2019s home. Shortly thereafter, McNulty left their company while they remained at her residence to attend to her children. She returned at approximately 3 a.m., and McDuffey, Cooper and Phipps then walked two blocks to Joe\u2019s Hello Tavern in order to purchase some soft drinks.\nJoe Cooper entered the tavern while his two companions remained on the sidewalk. Cooper wore a long black leather coat on this occasion. According to McDuffey and Phipps, defendant, Charles Calahan, emerged from, the tavern and asked them if they had a match. They responded in the negative. Defendant then inquired whether they knew the individual in the tavern wearing the long black coat. McDuffey and Phipps identified him as Joe Cooper. Defendant, wearing a black \u201cSuperfly\u201d hat and a three-quarter length brown or black leather coat, pulled a gun from his belt, put it in his coat pocket and walked away.\nShortly thereafter, Cooper exited the tavern bearing the soft drinks and the three youths walked away. Defendant reappeared, ordered them to stop and asked Cooper for a match. Cooper attempted to comply. Defendant seized this opportunity to draw his firearm, announced his name and stated that \u201cI\u2019m going to give you three seconds to get that coat off\u201d or \u201cI want your coat. I\u2019m going to count to three.\u201d Cooper again attempted to comply and commenced to remove his coat. Defendant counted to two and shot him in the stomach. Cooper dropped the coat and fled. McDuffey testified that defendant picked up the coat and walked away. Phipps testified that he told defendant that he did not have to shoot Cooper inasmuch as Cooper was \u201ccoming out of the coat.\u201d Defendant turned toward Phipps and said, \u201cWhat do you want?\u201d Phipps ran and shortly caught up with Cooper.\nCooper returned to the McNulty home and from there was transported to Cook County hospital by Phipps and Betty McNulty\u2019s boyfriend. McDuffey remained at the McNulty residence. At the hospital, Phipps described the assailant to investigating authorities. Phipps failed to inform police of defendant\u2019s name at that time though at trial his testimony indicated that Calahan announced his name prior to shooting Cooper.\nWhile Cooper was being prepared for emergency surgery, he was visited by his mother, Katie Cooper, and his great aunt, Martha Emery, who each testified during the course of the hearing on defendant\u2019s motion in limine and subsequently at trial regarding Cooper\u2019s dying declaration.\nWithin hours of the shooting, Chicago Police Officers William Rooney and Daniel Coffman interviewed Booker Strothers, a bartender at Joe\u2019s Hello Tavern, who had been on duty that evening. Strothers testified that a man matching the description of defendant, wearing a black \u201cSuperfly\u201d hat and brown leather coat had been in the tavern that evening and had left between 3 and 4 a.m. Strothers told the officers that the individual was known to him as Charles Calahan.\nRooney and Coffman proceeded to the administrative offices of the Chicago Housing Authority where they obtained defendant\u2019s address. Upon arrival at that location the officers effected defendant\u2019s arrest and seized a black leather coat and black \u201cSuperfly\u201d hat. Mrs. Cooper, McDuffey and Phipps identified the coat as belonging to Joe Cooper. McDuffey and Phipps also identified the hat as the one worn by defendant during the shooting.\nPhipps was shown a series of photographs, including defendant\u2019s, but failed to make an identification. Later that day, however, both Phipps and McDuffey identified defendant from a lineup as Cooper\u2019s assailant.\nDefendant testified in his own behalf and admitted his presence in Joe\u2019s Hello Tavern on the night of the shooting and that he had worn the apparel described by McDuffey and Phipps, indicating that he left by 1:30 a.m. and was at his home by 2 a.m. where he ate and slept until his arrest several hours later. At the coroner\u2019s inquest defendant testified that he had returned home by 1-1:30 a.m. Defendant also testified that he received the black leather coat from an unidentified \u201csissy\u201d several weeks earlier but that he lent the coat to an unnamed friend prior to the shooting. Defendant\u2019s brother testified to an alibi that at the time of the shooting defendant was at home.\nDefendant initially contends that the trial court erred in denying defendant\u2019s motion in limine to exclude testimony regarding Cooper\u2019s alleged dying declarations. Defendant argues that such statements were mere hearsay and that the prosecution failed to establish that they were intelligibly uttered by the deceased in the belief that his death was imminent and unavoidable.\nThe law with respect to dying declarations has been firmly established in Illinois. They are broadly defined as extrajudicial statements of fact by the victim, concerning the cause and circumstances of a homicide. In order that such statements be admissible into evidence, as an exception to the rule against hearsay evidence, it must appear that they are made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance, when he has despaired of life and looks to death as inevitable and at hand. People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328.\nWhile the original religious justification for the exception may have lost its conviction over the years, it can scarcely be doubted that powerful psychological pressures are present. At the moment wherein the deceased realizes his own death is imminent there can no longer be any temporal self-serving purpose to be furthered regardless of the speaker\u2019s personal religious beliefs. Indeed, given the physiological revulsion peculiar to the moment and common to all men, an express showing of the defendant\u2019s theological beliefs is immaterial. See 5 Wigmore on Evidence \u00a71443, at 241-42 (3d ed. 1940); McCormick on Evidence \u00a7281 et seq. (2d ed. 1972).\nIn ascertaining the declarant\u2019s consciousness of his approaching death recourse must be had to all facts and circumstances attending the party giving the dying declaration at the moment of its utterance. Within this context, the declarant must be sufficiently possessed of his mental faculties as to be able to have accurately perceived, recollected and communicated the circumstances surrounding his imminent death. (People v. Scott (1972), 52 Ill. 2d 432, 288 N.E.2d 478.) The trial court, in making its preliminary determination of the challenged statement\u2019s admissibility, must be satisfied beyond a reasonable doubt that the declarant believed himself in extremis when the statements were made. People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280.\nUpon careful examination of the record in the case-at-bar we are satisfied that the common law prerequisites for admission of the challenged statements as dying declarations were satisfied.\nThe victim, Joseph Cooper, sustained a gunshot wound to the abdomen at close range. He was transported to hospital facilities where he was prepared for emergency surgery. To this end he was given oxygen, various tubes were inserted into his body and his arms were strapped to the table upon which he lay. Several physicians, interns and nurses attended to him. One physician testified that Cooper\u2019s blood pressure had dropped to alarmingly low levels and that Cooper had relapsed into shock. Cooper\u2019s chances of recovery were characterized as \u201cslim.\u201d The doctor expressly noted, however, that Cooper was \u201camazingly\u201d alert, conscious and articulate, engaging the doctor in conversation as to his condition.\nApproximately one-half hour after he had been wounded Cooper was visited in the hospital by his mother and Mrs. Emery who stood at his bedside. Mrs. Cooper testified that she felt her son\u2019s forehead and remarked aloud, \u201cHe is cold. He is dying.\u201d According to Mrs. Emery, Mrs. Cooper then asked her son what was wrong. Cooper moaned and struggled to free himself of the oxygen mask which covered his face. He succeeded and said, \u201cI\u2019m shot. Tell them to put me to sleep. I\u2019m dying.\u201d Mrs. Cooper further testified that her son indicated that he was shot by \u201cCharles Calaban\u201d or \u201cCalaban.\u201d Mrs. Emery did not recall that her nephew mentioned a first name.\nGiven the victim\u2019s articulation of his status and the inevitability of his death as well as the sobering circumstances surrounding the utterance of such statements it cannot be said that these statements were beyond the purview and rationale of the dying declaration exception to the hearsay rule.\nDefendant\u2019s contention on appeal that Cooper chose to use his final moments to indulge in hyperbole are unpersuasive. To suggest that Cooper\u2019s statements were intended only to indicate great pain is to speculate well beyond a reasonable inference from the record and deny the plain import of Cooper\u2019s words.\nSimilarly, defendant\u2019s assertion that Cooper\u2019s words were unintelligible and inadequately communicated is without textual support. During the course of the hearing on defendant\u2019s motion in limine to exclude the dying declarations from evidence, Mrs. Cooper and Mrs. Emery experienced some difficulty in recalling the pronunciation of the assailant\u2019s family name as related by Cooper prior to his death. There is no foundation, however, for the broad assertion that the victim\u2019s declarations were so conjectural, ambiguous or misunderstood when uttered as to require their exclusion from evidence. Cf. People v. Scott.\nDuring the course of the hearing on the motion in limine, Mrs. Cooper testified that the name expressed by her son was \u201cCharles Cunningham\u201d or \u201cCuttingham\u201d but indicated on cross-examination that her son may have said \u201cCalaban.\u201d At the same hearing, Mrs. Emery related that Cooper said, \u201cCalaham shot me.\u201d The trial court interjected, \u201cI want to go back for my own notes. You said the victim moved the mask and said that Charles Calaban did it?\u201d Mrs. Emery responded, \u201cYes.\u201d No effort was made by counsel to correct the trial judge.\nDefendant now argues that the court prompted the witness and that the court had improperly determined at that juncture that Cooper had identified defendant as his assailant. It is noted, however, that the previous witness, Mrs. Cooper, had already testified that her son had identified his assailant\u2019s first name as \u201cCharles.\u201d Mrs. Emery, when questioned by the trial court, agreed that Cooper had identified \u201cCharles Calaban.\u201d We conclude that the evidence adduced at the hearing was more than adequate to establish that Cooper identified defendant as his assailant.\nDefendant was accorded every opportunity at trial to cross-examine Mrs. Cooper and Mrs. Emery as to their ability to recall defendant\u2019s specific words. Questions raised as to the credibility of these witnesses and the weight to be given their testimony were matters for the trial court on preliminary examination, the argument of counsel, the determination of the jury and the eventual reconsideration of the trial court on motion for new trial. (People v. Tilley.) There is ample support for their respective determinations.\nDefendant also argues that certain comments by the prosecution in its rebuttal argument to the jury were improper and prejudicial, citing several instances of alleged misconduct which he asserts mandates reversal of his conviction. At the outset we note that defendant failed to voice an objection at trial to any of the comments which he now so vigorously protests. However, inasmuch as we find that various remarks of counsel were improper, a brief discussion of the matter is warranted.\nDefense counsel in his closing argument attacked the personal integrity of the prosecution and referred to certain witness\u2019 testimony in earlier hearings not in evidence at trial. His inference that Mrs.. Cooper\u2019s, Mrs. Emery\u2019s and Strothers\u2019 testimony was fabricated by the police and \u201ceveryone involved\u201d in the prosecution of the trial was unfounded. The comments of the assistant State\u2019s Attorney, in response, that defense counsel\u2019s tactics were \u201cshabby\u201d and a \u201csmokescreen\u201d appear in their context as restrained.\nThe prosecution\u2019s argument, however, that Phipps and McDuffey would resort to self-help in dealing with defendant should the jury decide that defendant\u2019s case merited acquittal was not based upon evidence adduced at trial and had no bearing upon the question of defendant\u2019s guilt or innocence. Comments and arguments of this nature are to be condemned and discouraged, and in an appropriate case may be sufficient to require the reversal and remandment of the cause for a new trial.\nHowever, given the strength of the State\u2019s case at bar it cannot be said that the decision of the trier of fact would have been different had all of the remarks complained of remained unsaid. (People v. Nicholls (1969), 42 Ill. 2d 91, 245 N.E.2d 771.) The evidence of guilt was overwhelming. Defendant was positively identified by two eyewitnesses. Their opportunity to observe defendant on this occasion at extremely close range is unchallenged, and Strothers\u2019 testimony serves to place defendant at the tavern shortly prior to the shooting.\nDefendant was arrested at his home within hours of Cooper\u2019s death. In defendant\u2019s bedroom the arresting officers recovered a long black coat identified as that worn by the victim as he was shot and taken from him thereafter.\nSuch eyewitness testimony, effectively corroborated by the victim\u2019s deathbed identification of his assailant and coupled with the proceeds of the robbery recovered from defendant\u2019s home several hours after the shooting, serves to competently establish defendant\u2019s guilt of the offense of murder beyond a reasonable doubt. People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.\nFor the foregoing reasons the judgment of the circuit court is affirmed.\nJudgment affirmed.\nDOWNING and JIGANTI, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE STAMGS" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Marc Fogelberg and D\u00e1niel E. Radakovich, Assistant Public Defenders, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Michael J. Angarola, and Bertina E. Lampkin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES CALAHAN, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 61958\nOpinion filed October 12, 1976.\nJames J. Doherty, Public Defender, of Chicago (Marc Fogelberg and D\u00e1niel E. Radakovich, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Michael J. Angarola, and Bertina E. Lampkin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0994-01", "first_page_order": 1024, "last_page_order": 1030 }