People v. Brown ( 2007 )

SIXTH DIVISION
June 22, 2007
No. 1-05-0995
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
HENRY BROWN, ) Honorable
) Marjorie Laws,
Defendant-Appellant. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
This case comes before us for a second time. The first
appeal resulted in a remand for a new trial. On retrial a jury
found defendant, Henry Brown, guilty of the aggravated kidnaping
and aggravated battery of Gaddis Johnson. Defendant now argues
that section 115-10.4 of the Code of Criminal Procedure of 1963
(the Code) (725 ILCS 5/115-10.4 (West 2004)) did not authorize
the introduction into evidence of testimony Johnson gave at
defendant's bond hearing. We agree with defendant and therefore
we reverse the conviction and again remand for a new trial.
BACKGROUND
On March 8, 1995, two persons came to the apartment Johnson
shared with his sister and her children. Johnson left with the
two persons. Johnson returned home two days later. Burn marks
and other wounds covered much of Johnson's body. Following
discussions with Johnson, police arrested defendant. The court
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released defendant on a bond of $125,000, conditioned on an order
not to contact Johnson or his family.
Prosecutors petitioned for a hearing on violation of bail
bond, alleging that defendant contacted Johnson and that
defendant possessed heroin. At the hearing, begun on August 9,
1996, Johnson testified in great detail, over a continuing
relevancy objection, about the kidnaping and battery. He also
swore that defendant contacted him and offered him cash and
cocaine in exchange for testimony favorable to defendant.
The court delayed cross-examination of Johnson until August
13, 1996. Defense counsel limited his cross-examination to the
testimony regarding defendant's contact with Johnson after
defendant's release on bond. When the court excused Johnson, the
prosecutor asked, "Judge, is counsel waiving his right to
complete a meaningful cross of Mr. Johnson?" The attorneys
discussed with the court the ramifications of the question:
"MR. KUSATZKY [Defense counsel]: *** I believe the
State has a theory if Mr. Johnson does not appear at
trial, they will be asking of the Court to use a
transcript of that hearing ***.
THE COURT: Mr. State's Attorney, do you have any
information this witness will not be available for
purposes of trial?
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MR. ANDERSON [Prosecutor]: I don't know whether
he'll be available [f]or trial ***. I believe he will
be available at trial. ***
* * *
MR. KUSATZKY: Your Honor, I just want to be
clear, I did not cross examine him on the points of the
substantive nature of the allegation ***.
* * *
THE COURT: *** I won't have this Court have a
legal chess game gentlemen, it's not going to happen.
I called the witness. You have an opportunity to
examine the witness *** as to all his testimony in this
cause. I don't know whether or not this witness will
be available *** and in fact if he isn't, I don't even
know whether or not I would allow the testimony to
stand ***, but I'm not going to have this legal chess
game ***.
***
*** Let me end it right now, recall the witness.
You may have an opportunity to examine him."
Defense counsel's subsequent cross-examination of Johnson
occupied the next 35 pages of record.
Johnson died in 1997 from causes unrelated to the offense at
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issue. Defendant's trial began in 1998. The trial court denied
defendant's motion to bar use of Johnson's prior testimony at
trial. The jury found defendant guilty and the court entered
judgment on the verdict.
Defendant appealed, arguing that the court erred by
admitting Johnson's testimony into evidence. We analyzed the
admissibility of the testimony under the standards enunciated in
Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S.
Ct. 2531, 2539 (1990). We said:
"Where there was adequate opportunity to cross-examine
the witness at the prior hearing and defense counsel
took advantage of that opportunity, the transcript
bears sufficient indicia of reliability and affords the
trier of fact a satisfactory basis for evaluating the
truth of the prior statement. [Citation.] The
opportunity to cross-examine is considered adequate and
effective only when the motive and focus of the cross-
examination at the time of the initial proceeding were
the same or similar to that of the subsequent
proceeding. People v. Rice, 166 Ill. 2d 35, 41, 651
N.E.2d 1083 (1995).
The motive and focus of the cross-examination at
Henry's bond rehearing differed significantly from that
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of his trial. The purpose of the bond rehearing was to
determine whether Henry had violated the conditions of
his bond by contacting Gaddis. Although the court
improperly expanded the scope of this hearing by
permitting the State to question Gaddis extensively
about the crime itself, the motive of the defense
during cross-examination remained limited to the
allegations of Henry's bond violations. As such, we
find that Henry did not have an adequate opportunity to
effectively cross-examine Gaddis at the bond rehearing
and that the admission of the testimony violated the
confrontation clause." People v. Brown, No. 1-98-1411,
slip op. at 9 (2001) (unpublished order under Supreme
Court Rule 23).
In a footnote, we added:
"While we are aware of the statutory hearsay
exception for deceased witnesses (725 ILCS 5/115-10.4
(West 2000)), we make no comment as to its
applicability to this case since neither party raised
the issue on appeal." Brown, No. 1-98-1411, slip op.
at 9 n.1.
On remand prosecutors moved for permission to introduce
Johnson's testimony into evidence pursuant to section 115-10.4 of
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the Code. The prosecutor said:
"The testimony of Gaddis Johnson *** is offered as to
the material facts of his kidnaping and torture at the
hand of the defendant and his henchmen.
*** The testimony is more probative on the point
for which it is offered than any evidence that could be
procured since the testimony is that of the victim
himself narrating the events."
The court held:
"There was a cross-examination at the bond
hearing. I've reviewed the cross-examination of Mr.
Kusatzky of Mr. Johnson. It's within this Court's
opinion that it was an adequate cross-examination."
The court allowed the prosecutor to read Johnson's testimony to
the jury on retrial.
Johnson's niece testified that on March 8, 1995, she saw
defendant and his wife come to the apartment to talk to Johnson.
She saw a gun in defendant's hand. She watched as Johnson left
with defendant and defendant's wife.
Johnson's sister testified that after she came home on March
8, defendant called her and told her that he would kill Johnson
unless she repaid defendant the $3,500 that Johnson's brother had
taken from him. Johnson's sister heard Johnson screaming in the
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background. She received seven or eight calls from defendant
that day, along with several calls from defendant's wife.
Timothy Belin admitted that he signed a statement at the
police station on March 11, 1995. He testified that police
tricked him into signing the statement. He did not tell police
or the assistant State's Attorney any of the facts in the
statement the assistant State's Attorney wrote out. He signed it
without knowing what the attorney had written. The court
permitted a prosecutor to read the signed statement into the
record.
According to the statement, defendant brought Johnson to a
room in a housing project and told another man to put Johnson in
a closet with a pit bull. Belin heard Johnson yelling.
Defendant directed Johnson to strip and he ordered Belin and
others to tape over Johnson's mouth with duct tape, and to use
more tape to bind Johnson's hands and feet. Defendant directed
another man to burn Johnson. The man got a butter knife and
heated it on the stove. He then pressed it against Johnson's
bare skin. The man also took a hanger, heated it, and used it to
burn Johnson. He burned Johnson numerous times. Another man
poured bleach on Johnson's wounds.
In a separate proceeding Belin pled guilty to charges of
aggravated kidnaping.
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Johnson testified at the bond hearing that defendant and his
wife came to Johnson's apartment on March 8, 1995. Johnson
considered defendant a close friend of his family, and Johnson
had known defendant's wife all her life. Johnson let them into
the apartment. Defendant put a pistol to Johnson's stomach and
demanded that Johnson accompany him to his van. Defendant asked
where was Johnson's brother. Johnson said he did not know.
Defendant and his wife took Johnson in their van to a housing
project. Defendant told several "moes" to clear the front of the
building. Johnson explained that leaders in the Black Peace
Stones gang, including defendant, called other gang members
"moes" so they would not need to use any names.
Johnson recognized Belin and another man amongst the moes
who marched Johnson into the building then into an apartment and
into a closet. Defendant ordered a man to put a pit bull in the
closet with Johnson. The dog bit Johnson's wrist. The men
including Belin stripped Johnson on defendant's orders. They
taped Johnson's ankles together and bound his arms. Defendant
ordered the men to put knives and a hanger on the stove. Belin
burned Johnson with an iron. Johnson heard defendant call
Johnson's sister and tell her that he would torture and kill
Johnson unless she came up with the money. While defendant was
on the phone he ordered one of the men to burn Johnson with a
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heated knife. Johnson hollered when they burned him.
After more burns and more calls defendant ordered Belin to
pour salt on Johnson's wounds. Belin also poured bleach on the
wounds. Later they unbound Johnson and allowed him to put his
clothes back on. Defendant ordered one of the men to put a
duffel bag over Johnson's head. The men also rebound Johnson
with duct tape. They took Johnson to the van and then to an
apartment in a different building. When Johnson answered that he
still did not know where his brother had gone, defendant ordered
the men to take Johnson by some railroad tracks and shoot him in
the head and the heart. When they stopped at a fast food place
on the way, Johnson slid out of the car and ran down nearby el
tracks. A few blocks away he found a phone from which he called
his family.
The jury found defendant guilty of aggravated battery and
aggravated kidnaping. The court sentenced defendant, as a
habitual criminal, to natural life in prison. Defendant filed a
timely appeal.
ANALYSIS
Defendant raises only one issue on appeal. He contends that
the trial court erred again by permitting prosecutors to read to
the jury the testimony Johnson gave at the bond hearing. We
review the trial court's decision for abuse of discretion.
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People v. Hamilton, 364 Ill. App. 3d 721, 723 (2006).
Defendant has a constitutional right to confront the
witnesses against him. Crawford v. Washington, 541 U.S. 36, 158
L. Ed. 2d 177, 124 S. Ct. 1354 (2004). The constitution permits
use of a witness's testimonial statement against a defendant only
if (1) the declarant cannot appear at trial and (2) the defendant
had an opportunity to cross-examine the witness when the witness
made the statement. Crawford, 541 U.S. at 60, 158 L. Ed. 2d at
198, 124 S. Ct. at 1369. Most courts have required that the
cross-examiner must have had the same motive at the time of
cross-examination as he would have for cross-examination of the
witness at trial. See Willingham v. State, 279 Ga. 886, 887, 622
S.E.2d 343, 345 (2005) (statute required similar motive for
initial cross-examination to make prior testimony admissible);
State v. Summers, 159 S.W.3d 586, 597 (Tenn. Crim. App. 2004)
(court rule); Mercer v. United States, 864 A.2d 110, 115-16 (D.C.
2004); State v. Henderson, 139 N.M. 595, 598, 136 P.3d 1005, 1008
(2006); Farmer v. State, 124 P.3d 699, 703 (Wyo. 2005); United
States v. Carson, 455 F.3d 336, 378 (C.A.D.C. 2006).
In People v. Fry, 92 P.3d 970 (Colo. 2004), the trial court
permitted the prosecution to introduce at trial testimony from a
preliminary hearing. The Colorado Supreme Court found the
testimony inadmissible. The court explained:
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"[C]ross-examination at the preliminary hearing would
not have provided the same opportunity for exploration
into the case. [Citation.]
'The right to confrontation is basically
a trial right. It includes both the
opportunity to cross-examine and the occasion
for the jury to weigh the demeanor of the
witness. A preliminary hearing is ordinarily
a much less searching exploration into the
merits of a case than a trial, simply because
its function is the more limited one of
determining whether probable cause exists to
hold the accused for trial.' [Barber v. Page,
390 U.S. 719, 725, 20 L. Ed. 2d 255, 260, 88
S. Ct. 1318, 1322 (1968).]
* * *
*** Preliminary hearings are limited to a
determination of probable cause so that they do not
become mini-trials. Were we to allow extensive
cross-examination by defense counsel so as to prevent
any Confrontation Clause violations at trial if a
witness were to become unavailable, we would turn the
preliminary hearing in every case into a much longer
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and more burdensome process for all parties involved."
Fry, 92 P.3d at 978.
Apart from the constitutional constraints, Johnson's
statements must meet the constraints of section 115-10.4 of the
Code. That section provides:
"(a) A statement not specifically covered by any
other hearsay exception but having equivalent
circumstantial guarantees of trustworthiness is not
excluded by the hearsay rule if the declarant is
deceased and if the court determines that:
(1) the statement is offered as evidence
of a material fact; and
(2) the statement is more probative on
the point for which it is offered than any
other evidence which the proponent can
procure through reasonable efforts; and
(3) the general purposes of this Section
and the interests of justice will best be
served by admission of the statement into
evidence.
* * *
(d) Any prior statement that is sought to be
admitted under this Section must have been made by the
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declarant under oath at a trial, hearing, or other
proceeding." 725 ILCS 5/115-10.4 (West 2004).
Illinois courts have developed the interpretation of
"circumstantial guarantees of trustworthiness" in the context of
cases concerning the use of hearsay at trial. To determine the
trustworthiness of a statement, courts have considered several
factors, including the adequacy of the defendant's opportunity to
cross-examine the declarant. See People v. Bueno, 358 Ill. App.
3d 143, 160 (2005); People v. Brown, 363 Ill. App. 3d 838, 849
(2005). Our supreme court held:
"For an opportunity to cross-examine to be
considered meaningful, and therefore adequate and
effective, the motive and focus of the cross-
examination at the time of the initial proceeding must
be the same or similar to that which guides the cross-
examination during the subsequent proceeding." People
v. Rice, 166 Ill. 2d 35, 41 (1995).
The court in Rice did not report any restriction on the actual
cross-examination of the witness at the preliminary hearing.
Nonetheless, our supreme court affirmed the trial court's
decision to bar use of that witness's testimony because the
motive for the cross-examination at the preliminary hearing
differed too much from the motive for cross-examination at trial.
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As we held in our order on the initial appeal here, the
issues at the bond hearing differed significantly from the issues
at trial. Persuasive precedent from other jurisdictions holds
that issues at the bond hearings in those cases differed too much
from the issues at trial for the admission into evidence of
testimony from the bond hearings. Dickson v. State, 281 Ga. App.
539, 540, 636 S.E.2d 721, 723 (2006); People v. Vera, 153 Mich.
App. 411, 416, 395 N.W.2d 339, 341 (1986).
Here, at the bond hearing the court needed to decide whether
the prosecutors proved that defendant had contacted Johnson in
violation of the conditions of the bond and whether defendant
possessed heroin while free on bond. At trial the jury needed to
decide whether prosecutors proved beyond a reasonable doubt that
defendant kidnaped Johnson and committed aggravated battery
against him. The issues at the two hearings have little in
common.
The prosecution argues that the judge changed the motive for
the cross-examination at the bond hearing. The judge told
defense counsel that counsel could not reserve for trial the
cross-examination of Johnson on testimony about the aggravated
battery and aggravated kidnaping. After the ruling counsel
questioned Johnson about the offenses. The extended cross-
examination uses 35 pages of the trial record.
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In effect the trial court sought to change the character of
the bond hearing. As defense counsel pointed out at the bond
hearing, the prosecutors questioned Johnson as though they
expected him not to appear at trial. The trial court permitted
the prosecution to proceed as though the bond hearing became an
evidence deposition, which would preserve for trial Johnson's
testimony on issues that had no bearing on the allegations that
defendant violated the conditions of his bond. See Suffolk v.
Chapman, 31 Ill. 2d 551, 559 (1964).
Supreme Court Rule 217 prescribes proper procedures for
evidence depositions. 134 Ill. 2d R. 217. The rule requires 21
days' advance notice. The trial court and the prosecution here
did not provide the requisite notice. Moreover, the court should
allow an evidence deposition only when the party seeking to
preserve the testimony shows certain specified grounds for the
exceptional procedure. See Adams v. Northern Illinois Gas Co.,
333 Ill. App. 3d 215, 224 (2002), aff'd, 211 Ill. 2d 32 (2004).
The prosecution showed no such grounds here.
The attempt to convert the bond hearing to an evidentiary
deposition did not change defense counsel's basic motivation at
the hearing. The court needed to decide only whether defendant
contacted Johnson in violation of the conditions of the bond.
While defense counsel had reason to attack that aspect of
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Johnson's testimony, he had no reason to reveal his trial
strategy for impeaching Johnson's testimony concerning the
kidnaping and battery. We hold that defense counsel did not have
a similar motive for cross-examining Johnson at the bond hearing
as he would have had for cross-examination at trial. Therefore
Johnson's testimony about the kidnaping and battery from the bond
hearing lacked the circumstantial guarantees of trustworthiness
needed to make the testimony admissible under section 115-10.4
Next, the prosecution argues that the trial court committed
only harmless error because Johnson's testimony had no effect on
the result of the trial. Before trial the prosecutor told the
court that Johnson's testimony was "more probative *** than any
evidence" otherwise available on the issue of defendant's role in
the kidnaping and battery. The prosecutor relied on Johnson's
testimony in arguments to the jury. While Belin's written
statement corroborated much of Johnson's account, Belin retracted
the statement at trial. The jury might have found Belin's trial
testimony more credible than his written statement. We find a
reasonable possibility that the jury might have reached different
verdicts in the absence of Johnson's testimony. See People v.
Johnson, 296 Ill. App. 3d 53, 66 (1998).
At the bond hearing defendant cross-examined Johnson on his
testimony concerning the alleged bond violation. Defendant did
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not have a motive similar to his motive at trial for cross-
examining Johnson's testimony concerning the kidnaping and
battery. Therefore, Johnson's testimony on those issues lacked
the circumstantial guarantees of trustworthiness that section
115-10.4 of the Code requires. Because the testimony has more
probative force than any other evidence offered on the extent of
defendant's involvement in the kidnaping and battery, we cannot
find the error harmless. Defendant does not contest the
sufficiency of the evidence. Therefore we reverse the
convictions and remand for a new trial.
Reversed and remanded.
FITZGERALD SMITH, P.J., and JOSEPH GORDON, J., concur.
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