People v. Gray ( 2008 )

NO. 4-06-0488 Filed 1/16/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
AMMON GRAY, ) No. 05CF324
Defendant-Appellant. )
) Honorable
) Craig H. DeArmond,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
In February 2006, a jury found defendant, Ammon Gray,
guilty of first degree murder (720 ILCS 5/9-1(a)(3) (West 2004)),
armed robbery (720 ILCS 5/18-2(a)(1) (West 2004)), and home
invasion (720 ILCS 5/12-11(a)(2) (West 2004)). The State later
tried a codefendant, Marlon Williams, in a separate trial. As to
the charge of first degree murder in particular, defendant was
convicted on an accountability theory. In June 2006, the trial
court sentenced defendant to concurrent terms of 60, 30, and 30
years, respectively. Defendant appeals, alleging that the trial
court committed reversible error in refusing to admit potentially
exculpatory evidence that defendant contends supported a by-
stander defense. We reverse and remand for a new trial.
I. BACKGROUND
Defendant Gray and codefendant Marlon Williams worked
with murder victim Kenneth Blondeel at an industrial plant.
Other coworkers testified that Blondeel had been telling people
at work that he had just inherited "a lot" of money from his
mother's estate. Scottie Polk, a worker at the plant, testified
that he overheard Williams and defendant speculating as to how
much money Blondeel had inherited. Polk overheard Williams and
defendant talking about "kicking in the door" to Blondeel's house
and robbing him. There is some dispute as to whether Blondeel
was also involved in the discussion.
Rachel Ryan, Blondeel's girlfriend, who was pregnant
with Blondeel's child at the time of the incident, testified that
Blondeel had just inherited approximately $17,000. On the night
in question, Ryan and Blondeel were lying in bed when they heard
a knock on the door at approximately 11:45 p.m. Ryan was sure
that it was their friend Rudy because Rudy was the only person
who would come calling so late at night. The caller was in fact
Rudy, and Ryan heard Blondeel and Rudy talking for about 15
minutes. When Rudy left, Blondeel went back to bed. Ryan and
Blondeel fell back asleep. Ryan then was awakened by another
knock at the door. Ryan woke Blondeel up, told Blondeel that
Rudy was back, and told Blondeel to answer the door. Ryan stayed
in the bedroom.
It was not Rudy. Ryan heard two male voices and,
through the crack of the bedroom door, saw Blondeel let two men
into the kitchen. In court, Ryan identified the two men as
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Williams and defendant. Williams and defendant were talking
loudly, telling Blondeel that they wanted to "hang out." Wil-
liams and defendant appeared drunk. Williams and defendant
wanted to know why Blondeel had not been at work that day.
Blondeel told them he quit his job because he "got a stack of
money." Williams asked Blondeel where he kept the money. When
Ryan heard this, she "got a bad feeling," took Blondeel's wallet
out of the nightstand, and hid it behind the bed. Williams then
asked Blondeel for the money several times, but Blondeel told
Williams it was in the bank. Ryan could not call for help
because Blondeel did not have a landline and Ryan did not know
where Blondeel had left his cellular telephone.
At this point, Blondeel ran into the bedroom. Williams
and defendant followed Blondeel. Williams told Ryan, "Get back
in bed before I beat your ass." Ryan did so because she was
scared. Williams then repeatedly hit Blondeel in the face.
Defendant hit Blondeel once or twice. Williams dragged Blondeel
out into the living room. Ryan heard them arguing. Williams
then told defendant to bring Ryan out into the living room.
Defendant made Ryan sit on the ottoman. Williams backed Blondeel
up against the front door and continued to demand the money.
Blondeel kept insisting that he did not have the money and
finally offered Williams his automated teller machine (ATM) card
so that Williams could withdraw the money. Williams then took
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out a knife and stabbed Blondeel in the face. Defendant then
came up on the other side of Blondeel and said, "Don't be stupid.
Just give us the money." Williams and defendant both began
hitting defendant. Blondeel was yelling, "Quit it. I thought we
were friends." Blondeel then escaped into the kitchen.
In trying to placate Williams and defendant, Blondeel
told them that he had $1,000 in his wallet. Blondeel told Ryan
to go get his wallet, which actually contained only $150 and the
ATM card. Ryan saw Blondeel's stun gun behind the bed when she
went to get the wallet but the gun was cased and Ryan did not
know how to use it. Ryan came out of the bedroom and gave the
wallet to defendant. Williams became very angry when he saw that
only $150 was in the wallet. Williams began to stab Blondeel in
the chest, arms, and head.
Defendant took Ryan into the living room. Defendant
kept his hands on Ryan. When Ryan looked into the kitchen to see
what was happening, defendant forced her head down. Blondeel
continued to struggle to get away from Williams. Blondeel made
it back into the living room, and Williams slammed Blondeel's
head against the entertainment center. At one point, Blondeel
made it all the way over to Ryan and told her that he loved her
and that he thought Williams and defendant were going to kill
him. Somehow Blondeel ended up back in the kitchen. Ryan heard
Blondeel scream Williams' name. Williams then said, "Now your
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girlfriend knows my name so we will have to kill her." Blondeel
said, "Don't hurt her. She's pregnant." Blondeel later
screamed, "I just want to have a family." Williams told Blondeel
to "shut up."
Defendant told Ryan that he would protect her if she
did whatever Williams wanted. Defendant then went outside and
started talking on his cellular phone. Ryan followed defendant
outside. Williams saw Ryan start to go outside and told Ryan,
"If you go out there, [defendant] will beat your ass." Defendant
saw Ryan and brought her back inside.
Williams continued to attack Blondeel. Williams
ultimately slit Blondeel's throat. Williams then asked defendant
for a cigarette and began to smoke. Williams said they could not
leave until Blondeel died. After Williams finished his
cigarette, he stabbed Blondeel again and kicked Blondeel in the
stomach while Blondeel was dying. Ryan testified that the entire
chain of events, from the time Williams and defendant knocked on
the door until the time Blondeel died, seemed to last several
hours.
After Blondeel died, Williams made Ryan go with
Williams and defendant to the ATM machine. Ryan testified that
it took between 30 to 45 minutes to locate Williams' car because
Williams had parked the car far from Blondeel's apartment.
Williams drove to the ATM machine and then waited in the car
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while defendant and Ryan withdrew $200. Ryan tried to withdraw
more money but was denied. Ryan told defendant that she was
denied because the inheritance money was in the bank and not
accessible through an ATM machine. Williams drove to another ATM
machine at a gas station with a convenience store. The ATM at
the gas station also denied Ryan access to additional money.
While at the gas station, Ryan made eye contact with one of two
convenience-store clerks and pointed to blood that had gotten on
her shirt during the killing. Ryan mouthed to the clerk to call
the police. Both clerks later testified that Ryan had tried to
get their attention. The clerks wrote down the license number of
Williams' car but did not call the police. Williams then drove
away from the gas station and parked the car under a viaduct.
Williams told Ryan she was lucky to be alive. Williams showed
Ryan the knife he had used to kill Blondeel and told Ryan that if
she reported him, he would kill her. Williams let Ryan out of
the car and drove away. Ryan subsequently ran to an ex-
boyfriend's house and alerted police. It was then 5:16 a.m., on
May 22, 2005.
On cross-examination, Ryan testified that Blondeel had
used cocaine on the day of the incident. Ryan also testified
that, in her initial report to police, which took place at 7 the
morning of the incident, she did not state that defendant hit
Blondeel. Instead, Ryan initially told police that defendant
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"didn't do anything," defendant never had a weapon, and defendant
appeared as though he wanted to leave. Ryan told police that
Williams had committed all the violent actions against Blondeel
and that defendant had been "really nice to [Ryan]," telling Ryan
that he would protect her.
On redirect, Ryan testified that she had been in a
state of shock when she gave her initial statement to police and,
at that point in time, felt that defendant was the reason she had
survived the incident. Ryan testified that it was not until
nearly a month later that her memory and concentration improved
to the point where she told police an account more in keeping
with what she testified to at trial, i.e., that defendant also
hit Blondeel, defendant had an opportunity to leave when he went
outside to talk on his cellular telephone, and defendant stopped
Ryan from leaving. Ryan had hired an attorney at this point
because she worried that the police suspected her of being an
accomplice.
Just before opening statements were made, defense
counsel stated he wanted to discuss Marlon Williams' videotaped
statement to the police. The State objected the statement was
hearsay. Defense counsel argued that the statement, which
contained evidence exculpating defendant, should be admitted as
an exception to the hearsay rule as a statement against penal
interests based on Williams' unavailability. Defense counsel
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argued it was the State's decision to sever the trials and to try
defendant first, thereby rendering Williams unavailable to
testify. The State argued that the objective indicia of
trustworthiness listed in Chambers v. Mississippi, 410 U.S. 284,
294, 35 L. Ed. 2d 297, 308, 93 S. Ct. 1038, 1045 (1973), were not
met because the statement was not to a close acquaintance, it was
to a police officer. Also it did not make any difference that
defendant was tried first, because "if Marlon Williams goes to
trial and gets convicted he still isn't available." The State
argued that the cases were severed because it wanted to avoid any
argument that its use of Williams' confession, without any
opportunity for defendant to cross-examine Williams, deprived
defendant of his rights under the sixth amendment. Bruton v.
United States, 391 U.S. 123, 126, 20 L. Ed. 2d 476, 479, 88 S.
Ct. 1620, 1622 (1968). The trial court refused to allow defense
counsel to mention Williams' statement during oral argument.
During the trial, defense counsel sought to call Williams as a
witness, but Williams invoked his privilege against self-
incrimination. After the presentation of evidence was completed,
the court readdressed the issue. The court stated that there
could not be any due-process violation in severing the trials and
defendant's trial proceeding first because Williams' statement
was not admissible anyway.
The jury ultimately found defendant guilty of first
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degree murder, armed robbery, and home invasion. The court
sentenced defendant as stated. This appeal followed.
II. ANALYSIS
At issue on appeal is whether the trial court committed
reversible error in refusing to admit Williams' statement to
police that defendant did not know what Williams would do and
that defendant did not hit Blondeel. Defendant contends that
Williams' statement was exculpatory as to defendant in that the
statement supported that defendant was not accountable for
Williams' actions. As such, defendant argues that the trial
court's refusal to admit the statement deprived defendant of his
due-process right to present a defense. Chambers, 410 U.S. at
294, 35 L. Ed. 2d at 308, 93 S. Ct. at 1045. We review a trial
judge's decision to exclude hearsay statements under an abuse-of-
discretion standard. People v. Anderson, 367 Ill. App. 3d 653,
663-64, 856 N.E.2d 29, 38 (2006). A court abuses its discretion
when its decision is clearly against logic, when it acts
arbitrarily, without employing conscientious judgment, or when in
view of all the circumstances, the court exceeded the bounds of
reason and ignored recognized principles of law so that
substantial prejudice resulted. People v. Wear, 371 Ill. App. 3d
517, 529, 867 N.E.2d 1027, 1038 (2007).
The transcript of Williams' statement to police that
defendant sought to admit states in pertinent part:
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"Q. [Defendant] didn't hit [Blondeel]?
A. No, [defendant] didn't touch
[Blondeel].
Q. Didn't do anything *** stab him,
didn't touch him?
A. Didn't touch him.
Q. OK. That was all you?
A. That was all me.
Q. OK, did [defendant] have any idea
what you guys [were] going to do when you
showed up down there?
A. No, but I told him *** I intentionally
wanted to go over and do that.
Q. OK, what was your intent?
A. That was my intention, to go over
there and talk to him.
Q. OK.
A. That was it.
Q. What happened to make this all ***
A. Let me see. He told me *** told me
no.
Q. He told you no about the money?
A. 'cause I didn't get the money *** no,
I wasn't gonna get no money.
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Q. So when you hit him, asking for some
money and he said no, you just got mad? Right?
A. [no audible response]
Q. What kind of knife was it?
A. Like a flip out."
Courts are reluctant to sever trials so that a
codefendant who is unwilling to testify in his own trial may be
called as a witness. There is no assurance that the codefendant
will waive his constitutional privilege against self-
incrimination if called as a witness at a separate trial. People
v. Watkins, 3 Ill. App. 3d 560, 564, 278 N.E.2d 156, 159 (1972).
Even if the testifying defendant is tried first, this will not
inevitably wipe out any basis for his later claiming reliance
upon the privilege against self-incrimination. In the present
case, however, Williams did not claim the privilege at his own
trial but in fact testified. Even if Williams had been tried
first and then claimed the privilege at defendant's subsequent
trial, Williams' testimony would have been admissible against the
State as former testimony. 725 ILCS 5/115-10.2(f) (West Supp.
2005). Former testimony has been excluded where the State did
not have an effective opportunity to cross-examine, but that case
involved former testimony at a suppression hearing where the
State "did not have the motive to question [the] codefendant
regarding the nature of his relationship with [the] defendant."
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People v. Rice, 166 Ill. 2d 35, 41, 651 N.E.2d 1083, 1086 (1995).
The present case does not involve a suppression hearing but now
includes the actual trial of the declarant, Williams, where he
was thoroughly cross-examined on all aspects of the case.
The federal courts have refused to grant a severance
where the codefendant's testimony is conditioned on his trial
being held first. "The majority of other circuits have held
either that such a conditional promise to testify is insufficient
because defendants have no right to control the order in which a
case will be tried [citations] or that a trial court does not
abuse its discretion when it denies severance on the ground that
the willingness to testify is conditional." United States v.
McNeal, 853 F. Supp. 1047, 1050 (N.D. Ill. 1994). In the present
case, however, the decision to sever had already been made, by
the State. The State's argument, that it was attempting to
protect defendant's rights under Bruton when it severed the
cases, makes no sense. The statement was exculpatory and
defendant wanted it admitted. Defendant was not concerned about
Williams' statement being admitted without his right to cross-
examine.
Once a severance was granted in this case, was there
any reason why Williams was not tried first? Williams'
videotaped statement would have been admissible against him
whether he was tried first or second and whether or not he
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exercised his privilege against self-incrimination. The State
may have gained some advantage by the order of trials. If the
State had desired that Williams' testimony be used in defendant's
trial, it had ways to encourage that result. The State should
not be allowed to prevent Williams from testifying in defendant's
case simply because it believed his testimony would be helpful to
the defendant.
In Chambers, the defendant called McDonald to the
stand, who had previously confessed to the crime. McDonald
repudiated his confession and implicated the defendant. The
defendant was not allowed to impeach McDonald because of
Mississippi's voucher rule, that a party may not impeach his own
witness. The Supreme Court held that exclusion of this critical
evidence constituted a denial of due process. Chambers, 410 U.S.
at 302, 35 L. Ed. 2d at 313, 93 S. Ct. at 1049. The Court
recognized that declarations against penal interest are often
motivated by extraneous considerations and, therefore, are not as
inherently reliable as statements against pecuniary interest.
Nevertheless, the hearsay statements were made and offered under
circumstances that provided considerable assurance of their
reliability. Chambers, 410 U.S. at 299-300, 35 L. Ed. 2d at 311-
12, 93 S. Ct. at 1048. Chambers mentioned some objective indicia
of trustworthiness: the statements were made spontaneously to a
close acquaintance of the declarant shortly after the murder,
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they were corroborated by other evidence, they were
unquestionably against interest, and McDonald, who was present in
court, could have been cross-examined by the State.
In the present case, the trial court cited People v.
Craven, 54 Ill. 2d 419, 429, 299 N.E.2d 1, 6 (1973), for the
proposition that "the presence of these objective indicia of
trustworthiness are necessary for admissibility under the
admission against penal interest exception," concluding that none
of the required indicia were shown in this case. That approach
is not correct. People v. Bowel, 111 Ill. 2d 58, 67, 488 N.E.2d
995, 999-1000 (1986). The four factors mentioned in Chambers
"are merely guidelines to admissibility rather than hard and fast
requirements; the presence of all four factors is not a condition
of admissibility." People v. Tenney, 205 Ill. 2d 411, 435, 793
N.E.2d 571, 586 (2002). The question is rather whether the
statement "was made under circumstances [that] provide
'considerable assurance' of its reliability by objective indicia
of trustworthiness. [Citation.]" People v. Thomas, 171 Ill. 2d
207, 216, 664 N.E.2d 76, 81 (1996); see also Fed. R. Evid.
804(b)(3) (28 U.S.C. app. Fed. R. Evid. 804(b)(3) (2000))
("corroborating circumstances clearly indicate the
trustworthiness of the statement").
The declarant, in Chambers, would have been subject to
cross-examination if the defendant had been allowed to question
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him about the statement. Nevertheless, availability of the
declarant for cross-examination is not an absolute requirement.
Our supreme court, in Tenney, held that it was reversible error
to refuse to admit the hearsay statement, even though the
declarant was not available for cross-examination. Tenney, 205
Ill. 2d at 439-40, 793 N.E.2d at 588-89. Our supreme court had
addressed the issue even before Chambers: "[I]t would be absurd,
and shocking to all sense of justice, to indiscriminately apply
such a rule to prevent one accused of a crime from showing that
another person was the real culprit merely because that other
person was deceased, insane[,] or outside the jurisdiction of the
court." People v. Lettrich, 413 Ill. 172, 178, 108 N.E.2d 488,
492 (1952). Although the State would not have been able to
cross-examine Williams at defendant's trial, because Williams was
currently awaiting his own trial and probably would have
exercised his privilege against self-incrimination, the State
chose the order of trials. Even though the State would have been
unable to cross-examine Williams at trial, the police were able
to thoroughly question Williams when they took the videotaped
confession defendant sought to admit.
In Chambers, the confession was made spontaneously to a
close acquaintance shortly after the crime occurred. The present
case involves a videotaped confession to the police. "A
statement made to a law[-]enforcement officer may be made in an
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attempt to curry favor and obtain a reduced sentence; it may also
be the product of coercion or force and be involuntary. Such a
statement might not be as reliable as a statement made to a good
friend or [a] family member." Tenney, 205 Ill. 2d at 438-39, 793
N.E.2d at 588. Sometimes, however, statements made to police
officers in response to structured questioning may be more
reliable than casual statements supposedly made to acquaintances.
Statements to police officers while in custody have been admitted
in a number of cases. See, e.g., People v. Human, 331 Ill. App.
3d 809, 817, 773 N.E.2d 4, 11 (2002).
"The court in Chambers concluded a statement
to a close friend was more likely to be
trustworthy; here the statements of Andy and
Spreitzer made to a State's Attorney and
police officers while in custody were more
likely trustworthy because they tended to
intensify police efforts to prosecute Andy
and Spreitzer. Like the declarant in
Chambers, neither Andy nor Spreitzer stood to
benefit by disclosing his role in the
offenses, and each 'must have been aware of
the possibility that disclosure would lead to
criminal prosecution.'[Citation.]" People v.
Kokoraleis, 149 Ill. App. 3d 1000, 1020-21,
- 16 -
501 N.E.2d 207, 221 (1986).
The same appears true in this case. Williams did not stand to
profit by admitting his dominant role in this crime. Although
the State appeared to have clear evidence of Williams' guilt, his
confession increased the likelihood of a more severe sentence.
Williams was arrested the day the crime occurred, on May 22,
2005, and made his videotaped statement that same day. Because
the statement was made so shortly after the crime occurred, it
was not likely to be simply a "calculated statement[] made to a
police officer." People v. Caffey, 205 Ill. 2d 52, 98, 792
N.E.2d 1163, 1193 (2001).
The State argues that "Williams' attempt to deny
defendant's involvement was not directly against Williams' penal
interest." The cases the State cites in support of that
proposition, however, did not involve a situation like the
situation of our case. Instead, they involved the converse
situation, where the State attempted to use a declarant's self-
inculpatory statement, not against the declarant himself, but
against a codefendant. In Williamson, Harris told police that he
was transporting drugs for Williamson. Harris refused to testify
at Williamson's trial, but his statement was admitted under Rule
Fed. R. Evid. 804(b). The Supreme Court reversed. "The district
court may not just assume for purposes of Rule 804(b)(3) that a
statement is self-inculpatory because it is part of a fuller
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confession, and this is especially true when the statement
implicates someone else." Williamson v. United States, 512 U.S.
594, 601, 129 L. Ed. 2d 476, 483, 114 S. Ct. 2431, 2435 (1994).
"'[T]he arrest statements of a codefendant have traditionally
been viewed with special suspicion. Due to his strong motivation
to implicate the defendant and to exonerate himself, a
codefendant's statements about what the defendant said or did are
less credible than ordinary hearsay evidence.'" Williamson, 512
U.S. at 601, 129 L. Ed. 2d at 483, 114 S. Ct. at 2435, quoting
Lee v. Illinois, 476 U.S. 530, 541, 90 L. Ed. 2d 514, 526, 106 S.
Ct. 2056, 2062 (1986). The strict requirements imposed on
hearsay statements which inculpate the defendant were designed to
satisfy confrontation-clause concerns, but the confrontation
clause protects defendants, not prosecutors. When a defendant
attempts to use an exculpatory statement it is not necessary that
the declarant confess to the exact crime for which the defendant
is on trial. People v. Turner, 373 Ill. App. 3d 121, 125, 866
N.E.2d 1215, 1219 (2007). A declaration against penal interest
is simply "one that would be admissible against the declarant in
a criminal prosecution; it need not be a confession, but must
involve exposure to criminal liability." Tenney, 205 Ill. 2d at
436, 793 N.E.2d at 587.
It is true that the fact that a statement contains some
incriminating material may not justify admission of the entire
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statement, particularly where the statement is used to inculpate
rather than exculpate the defendant. However, a declarant's
statement that he committed the crime is the classic example of a
statement against penal interest, even though the logical import
of the statement is that defendant did not commit the crime. In
the Williams case cited by the State, defendant Bobby O.
Williams' request to admit the statement of Simpson, that "Fred"
shot a convenience-store clerk, was properly denied even though
Simpson admitted that he drove "Fred" to the convenience store
for the purpose of committing a robbery. The statement did not
really inculpate Simpson; rather, it was overwhelmingly
exculpatory. "[B]ecause these statements were self-exculpatory,
they were properly found inadmissible, despite their connection
to Simpson's other, self-inculpatory statements." People v.
Williams, 193 Ill. 2d 1, 23, 737 N.E.2d 230, 243 (2000).
The present case does not involve the "bogus-
confession" situation exemplified by People v. Tate, 87 Ill. 2d
134, 137-39, 429 N.E.2d 470, 472-73 (1981). In Tate, "a close
friend of defendant['s]" testified a third party had told him
that the third party had been the robber but at trial the third
party denied the statement. Tate, 87 Ill. 2d at 139, 429 N.E.2d
at 473. There is no doubt in this case that Williams made the
statement in question. When the statement is made to a police
officer, we are not forced to rely upon "a close friend of
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defendant[’s]" to determine whether the statement was made or its
exact language. In the present case, we are not even forced to
rely upon the testimony of a police officer. There is a
videotape. The State does not dispute that much of what Williams
said in the statement was true.
There clearly were corroborating circumstances here
which indicate the trustworthiness of Williams' statement.
Marlon Williams was later convicted of first degree murder, armed
robbery, and home invasion. During Williams' appeal, the State
argued that any disparity between his and defendant's sentences
was warranted due to the extent of Williams' participation in the
crime when compared to defendant's participation. Although his
videotaped statement was not played for the jury, prosecutors
cross-examined Williams with portions of his confession which
exculpated defendant. It is anomalous for the State to oppose
admission of a declarant's hearsay statement for defendant when
the State uses the same evidence to convict the declarant.
Tenney, 205 Ill. 2d at 440, 793 N.E.2d at 589. If evidence "'is
sufficiently reliable for prosecutorial use, the state cannot
claim that it is too unreliable when offered by the defendant.'"
Tenney, 205 Ill. 2d at 440, 793 N.E.2d at 589, quoting Pettijohn
v. Hall, 599 F.2d 476, 481 (1st Cir. 1979). In Tenney, the State
had already used the statement in Lane's trial when it objected
to defendant's use of the statement in his trial. Tenney, 205
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Ill. 2d at 440, 793 N.E.2d at 588-89. That is not true in the
present case, but the State had to have decided whether Williams'
statement was reliable long before it used it in Williams' trial.
Williams' statement was further corroborated by the
surviving victim, Ryan, who told police that only Williams did
anything, that defendant did not do anything, that she could tell
defendant did not want to be there and wanted to leave, and
defendant "was the reason why [she] was still alive." Ryan
changed her account at trial, which defendant argues resulted
from her perception that the police regarded her as a suspect.
The jury should have been allowed to decide which version was
true. Corroboration does not require that the judge be
completely convinced that exculpatory statements are true prior
to their admission. The judge must find only that sufficient
corroborating circumstances exist and then permit the jury to
make the ultimate determination concerning the truth of the
statements. Tenney, 205 Ill. 2d at 437, 793 N.E.2d at 587. "'If
the issue of sufficiency of *** corroboration is close, the judge
should favor admitting the statement. In most such instances,
the good sense of the jury will correct any prejudicial impact.'"
Tenney, 205 Ill. 2d at 437, 793 N.E.2d at 587, quoting
Commonwealth v. Drew, 397 Mass. 65, 75 n.10, 489 N.E.2d 1233,
1241 n.10 (1986).
As in Tenney, we cannot say that the exclusion of
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Williams' hearsay statement did not affect the outcome of
defendant's trial. Tenney, 205 Ill. 2d at 441, 793 N.E.2d at
589. Defendant argued the testimony that he had spoken of
robbing Blondeel before the offense was confused and conflicting,
and that Williams unexpectedly became violent. Defendant argued
that he feared Williams would kill him, as Williams had killed
Blondeel, if he ran from the crime scene, did not follow
Williams' directions, or did not take part of the money to
indicate he would not inform on Williams. As the State points
out, even without Williams' statement, all of the prosecution's
evidence showed that Williams, and not defendant, had stabbed
Blondeel. "From this evidence, the jury could have inferred the
facts supporting defendant's case. However, this inference was
no substitute for [the] confession, which would have provided
crucial substantiation of defendant's asserted defense." Tenney,
205 Ill. 2d at 441, 793 N.E.2d at 589. "[T]he exclusion of such
evidence 'deprived appellant of crucial substantiation of his
asserted defense ***. *** As a result, his case was "far less
persuasive than it might have been."'" Tenney, 205 Ill. 2d at
441, 793 N.E.2d at 589, quoting United States v. Benveniste, 564
F.2d 335, 341-42 (9th Cir. 1977), quoting Chambers, 410 U.S. at
294, 35 L. Ed. 2d at 308, 93 S. Ct. at 1045.
Although the outcome of this case may have been
different if Williams' videotaped statement had been admitted,
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and the error in refusing to admit the statement was not
harmless, the evidence was sufficient to prove defendant guilty
beyond a reasonable doubt. We therefore find that there is no
double jeopardy impediment to a new trial.
III. CONCLUSION
For the aforementioned reasons, we reverse and remand
the trial court's judgment for a new trial in accordance with our
decision in this case.
Reversed and remanded.
MYERSCOUGH and KNECHT, JJ., concur.
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