People v. Tracewski ( 2010 )

Filed 5/13/10 NO. 4-08-0707
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
LAURIE A. TRACEWSKI ) No. 07CM610
Defendant-Appellant. )
) Honorable
) Paul G. Lawrence,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE MYERSCOUGH delivered the opinion of
the court:
Defendant, Laurie A. Tracewski, appeals the trial
court's guilty finding on one count of domestic battery, arguing
a prior inconsistent statement from the victim was not admissible
pursuant to section 115-10.1 of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/115-10.1 (West 2008)) and that the
admission of the prior inconsistent statement violated her sixth-
amendment right to confrontation. We affirm.
I. BACKGROUND
On March 26, 2007, the State charged defendant with two
counts of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2006)),
in that she knowingly and without legal justification made
physical contact of an insulting or provoking nature with Lisa
Gipson (count I) and Lyle Hudson (count II).
A bystander's report revealed the following facts. On
May 19, 2008, defendant signed a document indicating she was
pleading not guilty and waiving a jury trial. The trial court
admonished her as to each right she was giving up. Defendant
indicated she understood her rights.
A bench trial was held on August 25, 2008. Lisa
Gipson, defendant's sister, testified that on March 25, 2007,
Gipson, defendant, and Lyle Hudson (Gipson's boyfriend) were at
501 East Mulberry, Apartment 3, in Bloomington, Illinois. Gipson
identified defendant in open court but stated she did not recall
the events from March 25, 2007, because she had been drinking for
a month straight. However, Gipson acknowledged writing and
signing the statement in State's exhibit No. 1, which was dated
March 25, 2007, and stated as follows: "[Defendant] kicked Lyle
Hudson's door and then hit him and myself. She kicked me in my
head and arm." The injuries shown in State's exhibit Nos. 2 and
3 are injuries to Gipson's leg and scratch on her left arm
respectively. Gipson stated she did not recall how she received
the injuries. Gipson stated she has a good relationship with
defendant.
On cross-examination, Gipson testified she had been on
Darvocet for a concussion, she was not supposed to be drinking,
and that she blacked out on the night of the alleged incident.
She again stated she did not recall writing the statement con-
tained in State's exhibit No. 1. However, Gipson did remember
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being pushed down the stairs, but the bystander's report did not
say by whom.
Ivy Thornton, a Bloomington police officer, testified
she spoke to defendant and the two alleged victims on the date in
question. Defendant, Gipson, and Hudson were all intoxicated.
Defendant was very intoxicated. Gipson was very cooperative and
was not as intoxicated as defendant and Hudson. Officer Thornton
stated she heard Hudson say to defendant "Don't hit me again.
Stop hitting me." Officer Thornton also stated defendant denied
doing anything. Gipson had a cut on her arm and red marks on one
of her knees and lower legs. Gipson told Officer Thornton that
defendant kicked her in the shin and cut her arm because defen-
dant wanted to use Gipson's cell phone and got angry. State's
exhibit No. 5 was a photograph of Hudson's leg.
Eric Yamada, a Bloomington police officer, stated that
he heard a male and female yelling when he arrived at the scene.
Officer Yamada did not recall if Gipson had any trouble filling
out the statement on State's exhibit No. 1 but stated she did
fill it out voluntarily. Gipson and defendant were intoxicated.
Gipson told Officer Yamada that defendant kicked her in the arm
and head.
State's exhibit Nos. 1 through 5 were admitted without
objection, and the State rested. Defendant moved for a directed
verdict, and the trial court denied the motion. Defendant did
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not present any evidence. Closing arguments were made. The
trial court admitted Gipson's statement made in State's exhibit
No. 1 as substantive evidence under section 115-10.1 of the Code
(725 ILCS 5/115-10.1 (West 2008)) and found defendant guilty of
count I and not guilty of count II.
On August 25, 2008, the trial court sentenced defendant
to 24 months of conditional discharge and 90 days in McLean
County jail that was stayed pending a remission hearing.
This appeal followed.
II. ANALYSIS
On appeal, defendant argues she was denied her right to
cross-examine Gipson in violation of the confrontation clause
under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124
S. Ct. 1354 (2004), and section 115-10.1 of the Code (725 ILCS
5/115-10.1 (West 2008)). Specifically, defendant contends the
trial court erred in admitting Gipson's written statement because
defendant was not able to effectively cross-examine Gipson due to
Gipson's memory loss. The State maintains that defendant's
sixth-amendment right to confrontation was not violated because
Gipson was subject to cross-examination and Gipson's written
statement satisfied both Crawford and section 115-10.1.
Initially, we recognize the State's argument that
defendant forfeited these issues because she did not file a post-
trial motion arguing them. Defendant's brief did not argue these
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issues should be reviewed under the plain-error doctrine.
However, as discussed below, the trial court committed no error
in admitting Gipson's written statement so there can be no plain
error.
"It is important to note that in deter-
mining whether a prior out-of-court statement
is admissible, the proponent of the statement
first must meet the requirements of the ap-
plicable statutory hearsay exception as set
out in section[s] 115-10[ through 115-10.5 of
the Code] (725 ILCS 5/115-10 [through 115-
10.5] (West 2002)). The holding in Crawford
should be considered only after the court
determines the proffered statement complies
with the requirements of the applicable stat-
ute." People v. Martinez, 348 Ill. App. 3d
521, 535, 810 N.E.2d 199, 212 (2004).
First, Gipson's written statement satisfies the re-
quirements of section 115-10.1 of the Code. See People v.
Hampton, 387 Ill. App. 3d 206, 213, 899 N.E.2d 532, 538-39
(2008). Second, the trial court's decision to admit as substan-
tive evidence Gipson's prior statement was not an abuse of
discretion. See People v. Flores, 128 Ill. 2d 66, 87-88, 538
N.E.2d 481, 489 (1989).
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"Section 115-10.1 of the Code provides for the substan-
tive admissibility of prior inconsistent statements in criminal
cases." People v. Zurita, 295 Ill. App. 3d 1072, 1076, 693
N.E.2d 887, 891 (1998). The statute reads in relevant part as
follows:
"In all criminal cases, evidence of a
statement made by a witness is not made inad-
missible by the hearsay rule if
(a) the statement is inconsistent with
his testimony at the hearing or trial, and
(b) the witness is subject to cross-
examination concerning the statement, and
(c) the statement--
***
(2) narrates, describes,
or explains an event or condi-
tion of which the witness had
personal knowledge, and
(A) the statement is
proved to have been writ-
ten or signed by the
witness, or
(B) the witness
acknowledged under oath
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the making of the state-
ment either in his testi-
mony at the hearing or
trial in which the admis-
sion into evidence of the
prior statement is being
sought, or at a trial,
hearing, or other pro-
ceeding[.]***
***
Nothing in this [s]ection shall render a
prior inconsistent statement inadmissible for
purposes of impeachment because such state-
ment was not recorded or otherwise fails to
meet the criteria set forth herein." 725
ILCS 5/115-10.1 (West 2008).
Here, the bystander's report shows during Gipson's
trial testimony she acknowledged writing and signing the state-
ment contained in State's exhibit No. 1 but claimed not to
remember the events of March 25, 2007, because she had been
drinking for a month straight. On cross-examination, Gipson
testified she "blacked out" because she was on medication and was
not supposed to drink alcohol. She claimed not to recall writing
the statement.
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"In determining whether the cross-examination require-
ment of section 115-10.1 was satisfied, our supreme court has
stated that it is sufficient if 'the declarant is testifying as a
witness and subject to full and effective cross-examination.'"
People v. Watkins, 368 Ill. App. 3d 927, 931, 859 N.E.2d 265, 268
(2006), quoting Flores, 128 Ill. 2d at 88, 538 N.E.2d at 489.
"A defendant is not entitled to a successful
cross-examination of a witness about the
events underlying his prior statement but,
rather, is merely provided an opportunity for
effective cross-examination. [United States
v.] Owens, 484 U.S. [554,] 559, 98 L. Ed. 2d
[951,] 958, 108 S. Ct. [838,] 842 [(1988)].
For instance, a witness's inability to recall
the basis for his testimony does not deprive
a defendant of the opportunity for effective
cross-examination. Flores, 128 Ill. 2d at
89-90[, 538 N.E.2d at 489], quoting Owens,
484 U.S. at 559, 98 L. Ed. 2d at 958, 108 S.
Ct. at 842 (noting that a witness's assertion
of memory loss is often the goal of cross-
examination)." Watkins, 368 Ill. App. 3d at
931, 859 N.E.2d at 269.
Both the Flores and Watkins courts rejected arguments
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that prior inconsistent statements were improperly admitted under
115-10.1 of the Code. The Flores court found that the trial
court properly admitted a witness's grand jury testimony despite
that witness's claim at trial that he could not recall having a
conversation with the defendant regarding the death of the
victim. Flores, 128 Ill. 2d at 87-88, 538 N.E.2d at 488-89.
In Watkins, two witnesses answered "'I don't remem-
ber,'" "'I don't recall,'" or "'I can't remember'" to almost
every question asked of them at trial. Watkins, 368 Ill. App. 3d
at 929, 859 N.E.2d at 267. The defendant challenged the admis-
sion of prior inconsistent statements to police and the grand
jury implicating the defendant in an aggravated battery based on
the allegation the witnesses were not subject to meaningful
cross-examination because of their professed memory loss regard-
ing their prior statements. Watkins, 368 Ill. App. 3d at 930,
859 N.E.2d at 267. The Watkins court rejected this argument and
stated the witness's "asserted memory loss did not deprive
defendant of the opportunity for an effective cross-examination."
Watkins, 368 Ill. App. 3d at 933, 859 N.E.2d at 270.
Defendant relies on People v. Yarbrough, 166 Ill. App.
3d 825, 520 N.E.2d 1116 (1988), for the proposition she was
denied her right to effectively cross-examine Gipson. However,
Yarbrough is distinguishable because the witness in that case
claimed not to even remember testifying before the grand jury.
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Yarbrough, 166 Ill. App. 3d at 831, 520 N.E.2d at 1120.
Here, the bystander's report indicates that on direct
examination Gipson acknowledged writing and signing the statement
but could not recall the events. On cross-examination, Gipson
claimed not to recall writing the statement. Further, of import,
Yarbrough predates our supreme court's decision in Flores. "One
of the policies underlying section 115-10.1 of the Code is to
protect parties from 'turncoat' witnesses who back away from a
former statement made under circumstances indicating that it was
likely to be true." People v. Speed, 315 Ill. App. 3d 511, 517,
731 N.E.2d 1276, 1281 (2000). Notably, Gipson is defendant's
sister and her statement was made shortly after the incident.
Therefore, Gipson's written statement satisfies the requirements
of section 115-10.1.
However, to be admissible, a witness's prior inconsis-
tent statement must not only satisfy the requirements under
section 115-10.1 but also satisfy the confrontation clause.
People v. Leonard, 391 Ill. App. 3d 926, 934, 911 N.E.2d 403, 411
(2009). The confrontation clause of the sixth amendment requires
that "[i]n all criminal prosecutions, the accused shall enjoy the
right *** to be confronted with the witnesses against him." U.S.
Const., amend. VI. "The confrontation clause guarantees an
opportunity for effective cross-examination, not cross-examina-
tion that is effective in whatever way, and to whatever extent,
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the defense may wish." Hampton, 387 Ill. App. 3d at 214, 899
N.E.2d at 539. In Owens, the Supreme Court stated that the
confrontation clause is not "violated by admission of an identi-
fication statement of a witness who is unable, because of a
memory loss, to testify concerning the basis for the identifica-
tion." Owens, 484 U.S. at 564, 98 L. Ed. 2d at 961, 108 S. Ct.
at 845. The Owens Court further stated as follows:
"Ordinarily a witness is regarded as 'subject
to cross-examination' when he is placed on
the stand, under oath, and responds willingly
to questions. Just as with the constitu-
tional prohibition, limitations on the scope
of examination by the trial court or asser-
tions of privilege by the witness may under-
mine the process to such a degree that mean-
ingful cross-examination within the intent of
the [r]ule no longer exists. But that effect
is not produced by the witness'[s] assertion
of memory loss--which, as discussed earlier,
is often the very result sought to be pro-
duced by cross-examination, and can be effec-
tive in destroying the force of the prior
statement." Owens, 484 U.S. at 561-62, 98 L.
Ed. 2d at 959, 108 S. Ct. at 844.
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See also Leonard, 391 Ill. App. 3d at 934, 911 N.E.2d at 411
("Generally, a witness is considered subject to cross-examination
when he is placed on the stand under oath and willingly answers
questions and the opposing party has an opportunity to cross-
examine him").
The bystander's report shows that Gipson physically appeared at
trial and was subject to cross-examination by defense counsel.
"There are no confrontation[-]clause problems merely because the
witness's memory problems preclude him from being cross-examined
to the extent the parties would have liked." Leonard, 391 Ill.
App. 3d at 934-35, 911 N.E.2d at 411. Therefore, the admission
of Gipson's written statement did not violate defendant's sixth-
amendment right to confront the witnesses against her.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
POPE, J., concurs
STEIGMANN, J., specially concurs
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JUSTICE STEIGMANN, specially concurring:
In arguing that defendant's confrontation-clause rights
were violated, he places great weight upon the Fifth District's
22-year-old decision in Yarbrough. The majority distinguishes
Yarbrough, but I disagree that we should do so. Instead, because
Yarbrough was not correctly decided and has since been repudiated
(at least implicitly) by several Illinois cases, we should now
explicitly repudiate it. Thus, I specially concur although I
agree with everything else the majority opinion holds.
Yarbrough stands for the proposition that a witness'
prior inconsistent statements would not be admissible under
section 115-10.1 of the Code if, when that witness testifies at
trial, he is not "subject to meaningful cross-examination"
concerning those prior statements because the witness claims that
"he cannot remember making the out-of-court statement or the
substance of that statement." Yarbrough, 166 Ill. App. 3d at
831, 520 N.E.2d at 1120. The Yarbrough court added, "Obviously,
[the] defendant cannot cross-examine a witness with respect to
the truth or falsity of an out-of-court statement of which the
witness has no memory." Yarbrough, 166 Ill. App. 3d at 831, 520
N.E.2d at 1120.
To reach this decision, the Yarbrough court relied upon
Douglas v. Alabama, 380 U.S. 415, 13 L. Ed. 2d 934, 85 S. Ct.
1074 (1965), in which a witness invoked his privilege against
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self-incrimination and refused to answer any questions.
Yarbrough, 166 Ill. App. 3d at 831, 520 N.E.2d at 1120. However,
Douglas was the wrong case to find United States Supreme Court
authority regarding what it means for a witness "to appear for
cross-examination" within the meaning of the confrontation
clause.
The two United State Supreme Court cases on point, both
of which were decided prior to Yarbrough, are Delaware v.
Fensterer, 474 U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985),
and United States v. Owens, 484 U.S. 554, 98 L. Ed. 2d 951, 108
S. Ct. 838 (1988). Each of these cases dealt with witnesses who,
for different reasons, had significant memory lapses regarding
the subject of their testimony when they testified as key wit-
nesses against the defendants in those criminal cases. In
Fensterer, the Supreme Court rejected the defendant's
confrontation-clause argument and wrote that "[g]enerally speak-
ing, the [c]onfrontation [c]lause guarantees an opportunity for
effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish." (Emphasis in original.) Fensterer, 474 U.S. at 20,
88 L. Ed. 2d at 19, 106 S. Ct. at 294. In Owens, the Supreme
Court reaffirmed its holding in Fensterer and wrote that
"[o]rdinarily a witness is regarded as 'subject to cross-examina-
tion' when he is placed on the stand, under oath, and responds
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willingly to questions." Owens, 484 U.S. at 561, 98 L. Ed. 2d at
959, 108 S. Ct. at 844.
In two cases dealing with section 115-10.1 of the Code,
the Supreme Court of Illinois has made clear that Fensterer and
Owens govern the question of whether a witness "has appeared for
cross-examination" within the meaning of the confrontation
clause. Those cases are Flores, 128 Ill. 2d at 88, 538 N.E.2d at
489, cited by the majority, in which the Supreme Court wrote that
"a gap in the witness' recollection concerning the content of the
prior statement does not necessarily preclude an opportunity for
effective cross-examination," and People v. Sutton, 233 Ill. 2d
89, 121, 908 N.E.2d 50, 70 (2009), in which the Illinois Supreme
Court held that "an opportunity for effective cross-examination
is not denied when a witness'[] past belief is introduced, and he
is unable [or unwilling] to recollect the reason for that past
belief."
Moreover, as stated earlier, many decisions of the
Illinois Appellate Court have repudiated the holding and analysis
of Yarbrough either sub silentio or more explicitly. One of the
most recent to do so was Hampton, cited by the majority, in which
the First District rejected the defendant's reliance upon both
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S.
Ct. 1354 (2004), and Yarbrough in his argument that his
confrontation-clause rights were violated when a State's witness'
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out-of-court statement was admitted under section 115-10.1 of the
Code, and the witness claimed not to be able to remember impor-
tant aspects of what he said in his prior statement. The First
District in Hampton wrote that "decisions issued by the United
States Supreme Court and the Illinois Supreme Court after
Yarbrough was published render its authority questionable."
Hampton, 387 Ill. App. 3d at 213, 899 N.E.2d at 539. (For a
compendium of Illinois cases, as well as cases from other juris-
dictions, rejecting the confrontation-clause analysis in
Yarbrough and explaining in greater detail the application of
Fensterer and Owens, see the recent decision of this court in
People v. Bryant, 391 Ill. App. 3d 1072, 909 N.E.2d 391 (2009).)
Contrary to my distinguished colleagues in the First
District, as well as my distinguished fellow panelists in this
case, I believe the time is long past to stop (1) referring to
Yarbrough as "distinguishable" and (2) noting that Yarbrough's
authority is "questionable." Instead, we should say what we
mean: Yarbrough was wrongly decided and this court (and other
courts) should not follow it. To say that its authority is
questionable or to attempt to distinguish it merely empowers
defendants, like the one in this case, to continue to cite
Yarbrough in support of erroneous arguments.
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