{ "id": 5626352, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS LEON MILLER, Defendant-Appellant", "name_abbreviation": "People v. Miller", "decision_date": "1978-03-17", "docket_number": "No. 14260", "first_page": "156", "last_page": "162", "citations": [ { "type": "official", "cite": "58 Ill. App. 3d 156" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "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 ], "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0511-01" ] }, { "cite": "173 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill. 2d 496", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2729369 ], "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0496-01" ] }, { "cite": "354 N.E.2d 482", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 425", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491670 ], "pin_cites": [ { "page": "428-29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0425-01" ] }, { "cite": "354 N.E.2d 643", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 816", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2486516 ], "year": 1976, "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0816-01" ] }, { "cite": "358 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. 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App. 3d 455", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3383622 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0455-01" ] }, { "cite": "193 N.E.2d 25", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "28 Ill. 2d 464", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5362185 ], "year": 1977, "pin_cites": [ { "page": "470-74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0464-01" ] }, { "cite": "81 N.E.2d 485", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "401 Ill. 68", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5307102 ], "weight": 3, "pin_cites": [ { "page": "71" }, { "page": "73-75" } ], "opinion_index": 0, "case_paths": [ "/ill/401/0068-01" ] }, { "cite": "244 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "42 Ill. 2d 60", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2849655 ], "weight": 2, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0060-01" ] }, { "cite": "41 A.2d 101", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1940, "pin_cites": [ { "page": "103-04" } ], "opinion_index": 0 }, { "cite": "131 Conn. 546", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1588272 ], "year": 1940, "pin_cites": [ { "page": "551-52" } ], "opinion_index": 0, "case_paths": [ "/conn/131/0546-01" ] }, { "cite": "247 S.W.2d 400", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10206359 ], "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/sw2d/247/0400-01" ] }, { "cite": "157 Tex. Crim. 150", "category": "reporters:state", "reporter": "Tex. Crim.", "case_ids": [ 2571138 ], "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/tex-crim/157/0150-01" ] }, { "cite": "4 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "771" } ], "opinion_index": 0 }, { "cite": "174 Va. 429", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 8689636 ], "year": 1952, "pin_cites": [ { "page": "438-39" } ], "opinion_index": 0, "case_paths": [ "/va/174/0429-01" ] }, { "cite": "40 N.W.2d 347", "category": "reporters:state_regional", "reporter": "N.W.2d", "pin_cites": [ { "page": "348-49" } ], "opinion_index": 0 }, { "cite": "229 Minn. 524", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 377974 ], "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/minn/229/0524-01" ] }, { "cite": "222 Ore. 533", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 4893633 ], "weight": 2, "year": 1949, "pin_cites": [ { "page": "542" }, { "page": "1052" } ], "opinion_index": 0, "case_paths": [ "/or/222/0533-01" ] }, { "cite": "457 P.2d 194", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1960, "pin_cites": [ { "page": "199" } ], "opinion_index": 0 }, { "cite": "76 Wash. 2d 398", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1080152 ], "year": 1960, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/76/0398-01" ] }, { "cite": "83 A.L.R. 2d 1368", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1962, "opinion_index": 0 }, { "cite": "61 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "390 Ill. 294", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2509262 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill/390/0294-01" ] }, { "cite": "287 N.E.2d 310", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "5 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526489 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/5/1009-01" ] } ], "analysis": { "cardinality": 872, "char_count": 15482, "ocr_confidence": 0.904, "pagerank": { "raw": 2.559059504381112e-07, "percentile": 0.8151759040778053 }, "sha256": "66e9b13091a0cbe9519e2dc0eed0c48b8c00f33ca0c86b1daec0da19b924fe0d", "simhash": "1:5c17955cffb284b3", "word_count": 2587 }, "last_updated": "2023-07-14T18:22:59.686785+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. THOMAS LEON MILLER, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE REARDON\ndelivered the opinion of the court:\nThe defendant, Thomas Leon Miller, was sentenced to a term of imprisonment of 5 to 15 years after a Vermilion County jury found him guilty of a charge of indecent liberties with a child in violation of section 11\u20144 of the Criminal Code of 1981 (Ill. Rev. Stat. 1975, ch. 38, par. 11\u20144).\nThe facts pertinent to this appeal concern events occurring on March 22 and 23, 1976. On those dates, the defendant was married to Terri Lynn Farren and resided in Danville with her and her two sons by a previous marriage. Ms. Farren put her children to bed between 8 and 10 p.m. on March 22,1976, when the defendant was not at home. Sometime between 10 and 11 p.m., defendant returned home after which time he and his wife went to bed. During the night, Ms. Farren awakened and observed a light shining in the bathroom. When she investigated, she observed the defendant and her youngest son, a 3-year-old, standing in the bathroom. The defendant had his hands on the back of the boy\u2019s head and his penis was allegedly in the boy\u2019s mouth.\nAt trial, the then 4-year-old victim was found to be incompetent to testify because, although he was articulate, he was unable to recollect dates, times, places, or other incidents. Prior to this finding of incompetence to testify, however, Ms. Farren testified that after she discovered her husband he pushed past her, exited from the bathroom, and said \u201cI didn\u2019t do anything.\u201d Ms. Farren then testified that her young son told her, immediately after the incident, that the defendant had said to him, \u201cAre you my buddy?\u201d After the boy replied in the affirmative, the defendant, according to the boy, placed his penis in the boy\u2019s mouth and said, \u201cShhhh, don\u2019t tell Mommy.\u201d\nOn appeal, defendant, contends: (1) that Ms. Farren should not have been permitted to testify to hearsay statements declared by her son who was later found to be incompetent to testify; (2) that defendant was denied a fair trial as the result of incompetent counsel; (3) that the State improperly elicited testimony from Ms. Farren concerning separate criminal acts not charged in the instant case; and (4) that the prosecutor\u2019s closing argument and references to defendant\u2019s divorce on grounds of physical or mental cruelty deprived defendant of a fair trial.\nIn Illinois, a child is not disqualified from testifying merely because of his age (People v. Crowe (1945), 390 Ill. 294, 61 N.E.2d 348), although our research has not disclosed any reported Illinois decision approving the testimony of a child under the age of 6. (See generally Hunter, Trial Handbook for Illinois Lawyers \u00a731:5, at 291 (4th ed. 1972).) In 29 Am. Jur. 2d Evidence \u00a7728 (1967), and in Annot., 83 A.L.R. 2d 1368 (1962), it is noted that some States permit the spontaneous or res gestae declarations of a child of tender years to be admitted as an exception to the hearsay rule, even though the child is too young to be a competent witness, so long as the declaration may for some reason be deemed reliable. (E.g., Johnston v. Ohls (1969), 76 Wash. 2d 398, 406, 457 P.2d 194, 199; State v. Hutchison (1960), 222 Ore. 533, 542, 353 P.2d 1047, 1052; State v. Gorman (1949), 229 Minn. 524, 526, 40 N.W.2d 347, 348-49.) The annotations also discuss two other classes of cases \u2014 those which merely relax the rule excluding incompetent testimony by permitting the court, in its discretion, to admit testimony concerning an infant\u2019s spontaneous declarations (e.g., McCann v. Commonwealth (1939), 174 Va. 429, 438-39, 4 S.E.2d 768, 771; Haley v. State (1952), 157 Tex. Crim. 150, 154, 247 S.W.2d 400, 402) and those in which neither the incompetent\u2019s testimony nor his spontaneous declarations are allowed into evidence. (E.g., State v. Segerberg (1945), 131 Conn. 546, 551-52, 41 A.2d 101, 103-04.) Wignore not only favored the admission of an incompetent child\u2019s res gestae statements but he also favored a total abolition of the testimonial disqualification for infancy. (2 Wigmore, Evidence \u00a7509, at 600-01 (3d ed. 1940); 6 Wigmore, Evidence \u00a71751, at 223 (Chadbourn rev. 1976).) McCormick thought exclusion of a child\u2019s testimony for incompetence was both \u201cinept and primitive.\u201d McCormick, Evidence \u00a762, at 140-41 (2d ed. 1972).\nIn People v. Crews (1969), 42 Ill. 2d 60, 244 N.E.2d 593, our supreme court reduced a murder sentence from death to 20 to 35 years\u2019 imprisonment. The sentence concerned a defendant\u2019s conviction for the murder of a 2-year-old girl she was seeking to adopt. At the sentencing hearing from which the appeal was taken, the court found that the defendant\u2019s then 6-year-old son was incompetent to testify. The sentencing court, however, still permitted a foster mother, with whom the boy had been placed, to testify that the boy told her that the defendant punished the murder victim with a belt and with more severity than he had ever been punished by her. The supreme court stated: \u201cPermitting this material to be elicited from the witness was clearly improper.\u201d (42 Ill. 2d 60, 64, 244 N.E.2d 593, 595.) The court\u2019s statement in Crews, however, is not controlling in the instant case because the boy\u2019s statement in Crews occurred an unknown period of time after the murder and could not in any way be characterized as a spontaneous or res gestae declaration.\nOur research has uncovered only one other reported Illinois decision which discusses the admissibility of the spontaneous or res gestae declarations of a child of tender years. In that case, People v. Willson (1948), 401 Ill. 68, 81 N.E.2d 485, the defendant had been charged with the shotgun slaying of her husband. At some time shortly after the shooting, defendant called to her neighbors for help, saying that her 3-year-old son, Linden, had shot his father. Ten minutes after the neighbors arrived, the defendant, her two children, and a neighbor entered an automobile where the defendant said: \u201c \u2018Linden, what did you shoot daddy for,\u2019 and he replied \u2018I didn\u2019t shoot daddy. You shot daddy and I am going to shoot you.\u2019 \u201d 401 Ill. 68, 71, 81 N.E.2d 485.\nAt the trial in Willson, young Linden was not offered as a witness, however, his remarks were offered through another witness and constituted the sole testimony on which the defendant was convicted. In reversing the defendant\u2019s conviction, the court stated:\n\u201cThe People do not indicate upon what ground they considered the statements made by a three-year-old child competent or proper evidence upon which to convict a person of murder.\n* \u201d * [But,] the People seem to believe the statements of the child, Linden Lee, were admissible as part of the res gestae. The true inquiry in determining whether certain actions or words constitute a part of the res gestae is whether the declarations are a verbal act, illustrating, explaining or interpreting other parts of the transaction of which they are themselves a part, or merely a history of a completed past affair. In one case they are competent; in the other they are not. [Citations.] In the present case when the first witness arrived the homicide was complete. At once the defendant and he started in a car to reach the witness\u2019s father. After they had gotten into the car, some minutes later, the defendant initiated the conversation by inquiring of her son why he had shot his father, and the incriminating answer of the child was not something that came spontaneously from him, as a part of the action in the house, but in answer to the mother, who indicated he had done something in the house. It lacked two elements necessary to come within the rule: First, it was not spontaneous, but was induced by a question; and second, because it is narrative or historical of a past event. The same is true in every other instance where the accusation of the child was repeated to other witnesses, and by them related to the jury. In addition to the foregoing the testimony of the coroner concerning such remarks made by the child showed they were elicited by talking with the child out of the presence of the mother, and then allowed in evidence, which, of course, was not admissible, and was highly prejudicial. We conclude, therefore, that the statements of the child were neither admissible on the ground of the res gestae, nor as tending to create an implied admission upon the part of the defendant.\u201d 401 Ill. 68, 73-75, 81 N.E.2d 485.\nWillson considered but does not forever preclude the admission into evidence of the res gestae utterances of a child who would otherwise be incompetent to testify before the jury. In Willson, unlike the instant case, the child\u2019s utterances were not contemporaneous with the commission of the crime and could not be considered spontaneous or res gestae utterances.\nIn the instant case, the trial court permitted Ms. Farren to testify as to her young son\u2019s responses to questioning within minutes of the commission of this crime. In our opinion, those responses were indeed utterances which could be characterized as spontaneous or res gestae declarations. (Compare People v. Damen (1963), 28 Ill. 2d 464, 470-74, 193 N.E.2d 25, and People v. Jacobs (1977), 51 Ill. App. 3d 455, 366 N.E.2d 1064, with People v. Taylor (1971), 48 Ill. 2d 91, 96-97, 268 N.E.2d 865, and Ketcham v. State (1959), 240 Ind. 107, 109-14, 162 N.E.2d 247, 248-50.) As in Damen, the fact that the spontaneous declaration was in response to another person\u2019s questioning does not destroy its spontaneity. Accordingly, the court did not abuse its discretion by permitting Ms. Farren to testify to those spontaneous or res gestae statements, even though her son was later found to be incompetent to testify. McCann; Haley.\nAs an alternative resolution of the first issue, it seems clear to us that the event being related by the victim here was, considering his age, a sufficiently startling occurrence to make it likely that he would tell the truth to his mother. It is also unlikely that a child of that age would in such a short period of time fabricate the statement attributed to him. We make this alternative resolution with the knowledge that some writers believe that use of the term res gestae inhibits an understanding analysis of the hearsay problem. (People v. Poland (1961), 22 Ill. 2d 175, 180, 174 N.E.2d 804, 807; Cleary, Handbook of Illinois Evidence \u00a717.24, at 291-92 (2d ed. 1963); McCormick, Evidence \u00a7272, at 578 (1954) (\u201cFrom the mists of res gestae * \u00b0 *.\u201d) In essence, we deem the victim\u2019s statements in this case to be both trustworthy and extremely probative of guilt. Their exclusion, we believe, would be manifestly unjust.\nDefendant also contends that he was denied a fair trial as a result of the alleged incompetence of his trial counsel. To support this contention, defendant points to his counsel\u2019s failure to file a post-trial motion and his inexplicable comment during the opening statements: \u201cI think we have got our station to the trying. I hold a losing argument.\u201d\nAnalysis of an attorney\u2019s exercise of judgment or discretion in choosing trial tactics is beyond the scope of appellate review. (People v. Greenlee (1976), 44 Ill. App. 3d 536, 539-40, 358 N.E.2d 649.) In addition, our review of the record here does not disclose that the defendant was prejudiced or denied a fair trial by his counsel\u2019s opening statement or trial tactics, nor can it be said that his representation reduced the trial to a sham or farce. People v. Jackson (1976), 41 Ill. App. 3d 816, 822, 354 N.E.2d 643; People v. Carter (1976), 41 Ill. App. 3d 425, 428-29, 354 N.E.2d 482.\nDefendant next contends that Ms. Farren\u2019s testimony concerning her belief that defendant planned to sell their landlady\u2019s stereo and defendant\u2019s beating of her when she questioned him about his intention to sell the stereo were improperly brought out by the State on redirect examination. On cross-examination by defense counsel, however, counsel elicited Ms. Farren\u2019s testimony that she and defendant had argued on the day preceding defendant\u2019s commission of the crime. The State\u2019s questions on redirect examination merely brought out the reason for and content of the couple\u2019s arguments on that day. The court did not err in permitting this redirect examination because the State, on redirect, has a right to question the witness on matters brought out during cross-examination. People v. Kostos (1961), 21 Ill. 2d 496, 500, 173 N.E.2d 466.\nFinally, defendant contends that the State\u2019s reference in closing argument to the grounds for Farren\u2019s divorce from the defendant was not based on evidence presented to the jury. In People v. Beier (1963), 29 Ill. 2d 511, 517, 194 N.E.2d 280, our supreme court held that such statements could not be made in closing argument to the jury. In Beier, the supreme court held that the statements clearly prejudiced the defendant.\nIn the instant case, defendant\u2019s counsel himself elicited Ms. Farren\u2019s testimony that she had filed a divorce complaint against defendant which alleged that he hit her. While the prosecutor, in his closing argument, clearly went beyond the evidence by commenting on the fact that the parties\u2019 divorce was on grounds of mental or physical cruelty, at least the factual foundation for those grounds was of record. Evidence of prejudice to the defendant resulting from the prosecutor\u2019s comments is not contained in the record.\nFor the foregoing reasons, we affirm defendant\u2019s conviction and the sentence imposed for indecent liberties with a child.\nAffirmed.\nWEBBER, J., concurs.", "type": "majority", "author": "Mr. JUSTICE REARDON" }, { "text": "Mr. PRESIDING JUSTICE GREEN,\nspecially concurring:\nI agree with the result reached by the majority and everything stated in the opinion except the court\u2019s reliance upon the doctrine of spontaneous or res gestae declarations to justify the testimony of Ms. Farren as to her son\u2019s responses to her questions.\nI agree with the late Justice Harry B. Hershey, author of Poland, Professor Edward W. Cleary and the authors of McCormick, Evidence \u00a7288, at 686-87 (2d ed. 1972) that the phrase res gestae is no longer a useful method of analyzing exceptions to the hearsay rule. To my knowledge, the supreme court has not used this analysis since the Poland decision in 1961.\nThe majority indicate that the mother\u2019s testimony of her son\u2019s responses would be admissible merely upon a showing that they were explanations of an act that had occurred very recently. However, Poland, Damen and the decisions of this court in People v. Parisie (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310, and Jacobs clearly state that for testimony of such declarations to be admissible, the declarations must also be the result of a startling event.\nHere, the evidence showed that at the time the child spoke, he appeared to be upset and afraid to leave his mother. I agree with the majority\u2019s alternate disposition of this issue which rules that in view of the child\u2019s age there was also sufficient evidence that the child had been startled by the previous occurrence. Thus, the requirements of spontaneity and a startling event required by the cited cases were met.", "type": "concurrence", "author": "Mr. PRESIDING JUSTICE GREEN," } ], "attorneys": [ "Richard J. Wilson and Gregory K. Harris, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Thomas J. Fahey, State\u2019s Attorney, of Danville (Phyllis Perko and Jan Tuckerman, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS LEON MILLER, Defendant-Appellant.\nFourth District\nNo. 14260\nOpinion filed March 17, 1978.\nGREEN, P. J., specially concurring.\nRichard J. Wilson and Gregory K. Harris, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nThomas J. Fahey, State\u2019s Attorney, of Danville (Phyllis Perko and Jan Tuckerman, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0156-01", "first_page_order": 178, "last_page_order": 184 }