People v. French,  2017 IL App (1st) 141815 (March). Episode 339 (Duration 18:04).

Little review of the hearsay rule involving the course of conduct and existing state of mind exceptions.

Facts

This was a drive-by shooting involving a driver and the shooter, who was the defendant in this case.

One victim died at the scene a second survived his gunshot wounds.

The surviving victim testified he saw the car pass by the group twice. The second time the victim that died tried unsuccessfully to wave or flag down the driver.

Deceased victim (Victim D) told surviving victim (Victim) that he wanted to talk to the driver about “what was going on between” him and Victim D’s family.

When the driver came back the third time he had the shooter with him and the shooting happened.

Hearsay Issue

Defendant argued this testimony was hearsay and should have been excluded.

Hearsay evidence is testimony regarding an out-of-court statement offered to prove the truth of the matters asserted.

Unless hearsay falls within an exception to the hearsay rule, it is generally inadmissible due to its lack of reliability and the inability of the opposing party to confront the declarant.

Implied Information Is Also Hearsay

The matters asserted as employed in the definition of hearsay includes both matters directly expressed and matters the declarant necessarily implicitly intended to express. When the declarant necessarily intended to express the inference for which the statement is offered, the statement is tantamount to a direct assertion and therefore is hearsay.

The declarant necessarily intends to assert (i.e., implicitly asserts) matters forming the foundation for matters directly expressed in the sense that such additional matters must be assumed to be true to give meaning to the matters directly expressed in the context in which that statement was made.

Example

To illustrate, the question “Do you think it will stop raining in one hour?” contains the implicit assertion that it is currently raining.” Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 801.1.

Trial Court Said Not Hearsay

The trial court erred when it admitted this statement and found the testimony was not hearsay because it was not offered for the truth of the matter, and allowed the testimony to explain the course of conduct.

The trial court added that very often victims’ statements made just prior to their murder were admissible.

Course of Conduct

Explaining the course of conduct is akin to explaining the effect of words on a listener. Here, contrary to the trial court’s ruling, the statement was not admissible for the nonhearsay purpose of explaining the course of conduct because the deceased victim’s out-of-court statement cannot be used to explain his own conduct.

This was not a case where statements were offered for their effect on the listener or to explain the subsequent course of conduct of another person, which would not be hearsay.

Existing State of Mind

Illinois Rule of Evidence 803(3) is not applicable.

It says that a “statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” is not excluded by the hearsay rule, even though the declarant is available as a witness.

Rule 803(3) does not permit the surviving victim to testify to the deceased victim’s intent, plan, or motive to stop the driver and talk to him about something because the deceased victim’s state of mind was not relevant to a material issue in the case.

Perhaps the deceased victim’s state of mind might have been relevant if defendant or the driver had claimed to have acted in self-defense, but here the material issues were the identities of the driver of the car and the shooter in the passenger seat.

Under the plain terms of Rule 803(3), Victim D’s belief that he saw who was driving the car and his intent to stop the car to talk to the driver about a dispute that could serve as the driver’s motive for the subsequent shooting do not constitute then-existing state of mind hearsay exceptions.

Analysis

Victim D’s statement that he wanted to stop the car to talk to the driver about something contains the implicit assertion that Victim D believed he observed the driver in that car and it implies there was some beef between the driver and Victim D’s family.

This is not a situation where the out-of-court statement was relevant simply because of the fact it was said.

Here, the relevance of the implicit assertion in the deceased victim’s statement depends on his believing that it was true, so it was offered for the truth of its content and therefore is hearsay.

Similarly, Victim D’s directly expressed assertion that he wanted to talk to the driver about something that was going on between their families is also relevant only for the truth of its content.

They also discuss a 115-10.1 issue. I think trial court gets the analysis wrong. But it doesn’t matter because all this hearsay stuff was plain error.