People v. Sanders

2021 IL App (5th) 180339NOTICE
Decision filed 04/19/21. The
text of this decision may be NO. 5-18-0339
changed or corrected prior to
the filing of a Petition for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 15-CF-1880
)
ARYION SANDERS, ) Honorable
) Neil T. Schroeder,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court, with opinion.
Justices Moore and Vaughan ∗ concurred in the judgment and opinion.
OPINION
¶1 A jury convicted defendant, Aryion Sanders, of first degree murder for the shooting death
of James Hubbard. The trial court sentenced defendant to 43 years in the Illinois Department of
Corrections. On direct appeal from his conviction and sentence, defendant argues, inter alia, that
the trial court erred in allowing the State to introduce at trial, as substantive evidence, the transcript
of defendant’s testimony from a prior trial during which defendant was impeached with statements
that were excluded as substantive evidence pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
For the following reasons, we reverse defendant’s conviction and remand for a new trial.
∗
Justice Overstreet was originally assigned to participate in this case. Justice Vaughan was
substituted on the panel subsequent to Justice Overstreet’s election to the Illinois Supreme Court and has
read the briefs and listened to the recording of oral argument.
1
¶2 I. BACKGROUND
¶3 During the early morning hours of August 8, 2015, while walking along Oakwood Street
in Alton, Illinois, Hubbard was shot four times. Bullet fragments were recovered from Hubbard’s
body and shell casings were recovered from the area where his body was lying on the street. All
of the shell casings and bullet fragments originated from the same .38-caliber semiautomatic
weapon. Hubbard died from gunshot wounds to the head. Stippling on Hubbard’s skin at the
bullets’ entry points indicated that the weapon was fired at close range. A surveillance video of
the 700 block of Oakwood Street showed Hubbard walking and talking on his cell phone when the
shooter appeared on the screen, made his way across the building at 743 Oakwood, and entered a
cul-de-sac area, ultimately shooting Hubbard. An investigation led the police to suspect that
defendant was the shooter. At the time of the shooting, defendant was 17 years old and lived with
his family in a housing unit a few hundred yards from the site of Hubbard’s murder. Defendant
participated in interviews with the Alton Police Department on August 10, 12, 13, and 14, 2015,
in connection with the murder of Hubbard. On September 25, 2015, the State charged defendant
with two counts of first degree murder stemming from the shooting. Each count charged defendant
with the death of Hubbard based on a different legal theory for murder. Defendant was tried on the
murder charges twice. During both of the trials, the primary factual dispute centered on the identity
of the shooter. The first trial resulted in a hung jury, and the second trial resulted in the conviction
and sentence from which defendant appeals.
¶4 Prior to the first trial, on May 16, 2016, defendant filed a motion to suppress his statements
to the Alton Police Department in which he confessed to shooting Hubbard. Defendant argued that
his statements were obtained in violation of his due process rights under the fourteenth amendment
of the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois
2
Constitution (Ill. Const. 1970, art. I, § 2) and, therefore, should be suppressed. Defendant’s original
motion did not include any argument regarding suppression pursuant to Miranda, 384 U.S. 436. It
did allege that defendant’s statements were involuntary and included a discussion of the test for
voluntariness set out in Hutto v. Ross, 429 U.S. 28 (1976) (per curiam).
¶5 Defendant pointed out the factors used to determine whether a confession was voluntary,
including whether the confession was extracted by any sort of threats or violence or obtained by
any direct or implied promises, however slight, or by the exertion of any improper influence. Id.
at 30. Defendant argued that the interrogation was lengthy, having occurred over four days, and
deprived defendant of the ability to see his family, a friend, or an attorney. Defendant argued that
law enforcement extracted his confession through coercion, by threatening defendant that his
younger brother would be arrested, or even shot and killed.
¶6 A hearing on the motion was held on July 27 and 28, 2016. On August 11, 2016, the State
filed a memorandum and supplemental argument regarding defendant’s motion to suppress. In its
memorandum, the State conceded that defendant invoked his right to remain silent in the third
interview and that it was not honored. Therefore, the State conceded that it would be appropriate
for the trial court to suppress any questions or answers that came after defendant’s assertion of his
rights, which would be the last 20 minutes of the interview. The State argued that the confession
given by defendant in the fourth interview should not be suppressed and was not fruit of the
poisonous tree.
¶7 On August 22, 2016, defendant filed a memorandum in support of his motion to suppress,
arguing that defendant’s confession given at the end of his third interview was involuntary and a
result of coercive tactics by the police. Defendant then argued that the confession obtained during
the fourth interview should be suppressed pursuant to the exclusionary rule announced in Miranda.
3
Miranda, 384 U.S. at 473-74. The motion to suppress statements was partially granted by written
order of the trial court on March 14, 2017.
¶8 Defendant’s motion was denied as to the first interview, during which defendant had made
no inculpatory statements. The trial court held that, during defendant’s second interview, defendant
clearly and unequivocally asserted his right to remain silent and that, despite this assertion, the
interview continued. Defendant had not made any inculpatory statements during the second
interview. In defendant’s third interview, the trial court found that defendant again told officers
that he did not want to talk anymore and that request was ignored. In addition, defendant requested
to speak with the juvenile officer and that request was ignored. After a lengthy exchange with the
officers, defendant eventually confessed that he had shot Hubbard. Later during the interview,
when asked how many times he had fired, defendant stated that he was lying about shooting
Hubbard and that he only said that because he did not want his little brother to get into trouble.
¶9 The trial court found that the third interview was inadmissible based on defendant’s
invocation of his right to remain silent during his second interview. The trial court ruled that
defendant’s right to remain silent was not scrupulously honored in the second interview, which
continued after he invoked his right to remain silent. The third interview was an interrogation for
the same crime, further weighing in favor of suppression. The trial court noted that defendant again
invoked his right to remain silent in the third interview and was again ignored. In addition to
finding a Miranda violation, the trial court also found the following relevant to the voluntariness
of defendant’s confession:
“the detectives created a coercive environment which ultimately overcame the will
of the defendant. This is demonstrated in the lengthy portion of the transcript set
forth above. The detectives did this by threatening the arrest of the defendant’s
4
younger brother unless the defendant told them what happened. On cross-
examination, Detective O’Neill admitted that the arrest of the defendant’s brother
was a ‘threat intended to elicit an emotional response.’ A distinct scenario was
explained to the defendant. This was done both verbally and by the detective’s
actions in directing other officers to immediately leave the police station and arrest
the brother. The detectives explained to the defendant that his fifteen year old
brother would be arrested at gunpoint. During that arrest, a shootout might occur.
His brother would then be having a ‘long, long, long night’ and be placed in a cell
with someone the detective ‘hoped wasn’t a really bad guy.’ ”
The trial court suppressed all statements made during the third interview.
¶ 10 The trial court then turned to the fourth interview, which was conducted at defendant’s
request. During this interview, defendant again told officers that he was lying during the prior
interview to keep the officers from arresting his younger brother as they had threatened. After
another 35 minutes of the detectives speaking primarily between themselves, explaining why
defendant should cooperate and explaining his involvement in the murder, defendant again made
inculpatory statements. The trial court suppressed the fourth interview because defendant’s
invocation of his right to remain silent in his third interview was not scrupulously honored.
¶ 11 The State filed a notice of intent to introduce defendant’s suppressed statements at trial for
purposes of impeachment if defendant chose to testify. The State noted that while a suppressed
statement cannot be used in the State’s case-in-chief, if a defendant elects to testify, the State can
impeach a defendant with his prior statements. Defendant did not object to the State’s notice of
intent. The trial court began the first trial on September 11, 2017.
5
¶ 12 At the first trial, defendant testified, and during cross-examination, the State questioned
defendant about the suppressed statements in an effort to impeach his credibility. The statements
were admitted in defendant’s first trial for impeachment purposes only and not as substantive
evidence of defendant’s guilt. This first trial resulted in a mistrial due to a hung jury, and the State
elected to retry the defendant.
¶ 13 Prior to the beginning of defendant’s second trial the State filed a notice of intent to
introduce a certified transcript of defendant’s testimony given under oath at his first trial. The State
maintained that it was entitled to introduce defendant’s testimony from his first trial as a statement
by a party opponent, noting that defendant’s statements were admissible under Rule 801(d)(2)(A)
of the Illinois Rules of Evidence (Ill. R. Evid. 801(d)(2)(A) (eff. Oct. 15, 2015)). Defendant
objected, arguing that he would be prejudiced by the admission of his prior testimony if he chose
not to testify in the second trial. Defendant further argued that the admission of the prior testimony
could limit his defense. The trial court ruled that defendant’s prior testimony was admissible as a
statement against interest and allowed a copy of the transcript of defendant’s prior testimony to be
read into evidence in the State’s case-in-chief and considered as substantive evidence.
¶ 14 The transcript was edited by the State to redact sustained objections and the mention of an
outburst that defendant had during the first trial. 1 Defense counsel was given a copy of the
transcript, including the redactions, that the State was seeking to introduce in its case-in-chief and
was given an opportunity to review it and suggest any further redactions that defendant believed
1
The transcript was read into evidence in the State’s case-in-chief and included a reference by the
prosecution to an outburst by defendant in the first trial. As the first trial transcript is not a part of the record,
it is unclear whether this is the same outburst which the State agreed to redact based on its belief that it was
prejudicial to the defendant. The defendant has not raised any issues concerning the redaction of the trial
transcript within this appeal.
6
were required. Defendant did not request any further redaction, and it does not appear from the
record before this court that the matter was revisited prior to the transcript’s introduction at trial.
¶ 15 During the second trial, the State called several witnesses to testify about events before and
after the shooting, including defendant’s younger brother, defendant’s friend, and various police
and forensic witnesses. As noted above, the factual dispute at the heart of the trial was the identity
of the shooter.
¶ 16 The court reporter read the transcript of defendant’s first trial testimony to the jury. In his
prior testimony, defendant offered his version of the events that occurred on August 7 and 8, 2015.
During direct examination in the first trial, defendant testified that on the day of the shooting, he
wanted to go with his friends to the Six Flags amusement park, but he was not allowed to go. He
met up with his friends later that evening before deciding to head home to eat and go to bed. He
went home, took Advil medicine, and went to sleep. He testified that he did not become aware of
Hubbard’s death until the next day, when his friends told him that there were police in the area
because Hubbard had been shot.
¶ 17 The transcript that was read to the jury included questions asked by the State at the first
trial during its cross-examination of defendant. The State asked defendant about the interviews
that were conducted by the Alton Police Department related to the shooting. Defendant’s responses
included both his denials and affirmations that he had told officers on two occasions that he shot
Hubbard, and an admission that defendant told officers that he threw the gun into the woods.
Although he admitted to making those statements to the officers, during his testimony, defendant
asserted that those were false confessions. The transcript included defendant’s explanation during
the first trial that he only admitted to the shooting because he was scared for his younger brother
based on threats made by officers. Defendant did not testify during the second trial. The transcript
7
was introduced in the State’s case-in-chief and was admitted as substantive evidence of
defendant’s guilt. The jury found defendant guilty, and the trial court sentenced defendant to 43
years in prison.
¶ 18 Defendant filed a posttrial motion requesting a new trial and alleged: (1) that defendant
was unduly prejudiced when the State introduced evidence of the previously suppressed confession
to the jury and (2) that defendant was prejudiced by the presence of a member of the jury (juror
19) who failed to disclose her bias against African-American males and her multiple convictions.
In his memorandum in support of the motion, defendant argued that the trial court erred in
permitting the use of the transcript of his testimony during his first trial as substantive evidence of
guilt because it contained statements that had been suppressed pursuant to a violation of Miranda.
Defendant also noted in his memorandum that “[t]he purpose of the suppression of these
statements was because they were secured under circumstances which were highly coercive and
thus unreliable.” Defendant argued that his suppressed statements introduced during his first trial
could be used for impeachment purposes only in the second trial. Defendant further argued that
juror 19 failed to disclose a “bias against African-American males [as well as] multiple
conviction[s].” Based on the resolution of defendant’s first issue, we do not reach the arguments
relating to juror 19. The trial court denied defendant’s posttrial motion, and defendant now appeals
his conviction and sentence.
¶ 19 II. ANALYSIS
¶ 20 Defendant argues that the trial court abused its discretion when it granted the State’s notice
of intent to introduce a certified transcript of defendant’s testimony given under oath at his first
trial. Defendant claims that it was error to allow the State to introduce at trial, as substantive
evidence offered during its case-in-chief, the transcript of defendant’s testimony from his first trial.
8
Defendant argues that the introduction of the transcript was an abuse of discretion because it
included several references to statements that were previously suppressed based on a violation of
defendant’s rights under the fifth and sixth amendments 2 to the United States Constitution (U.S.
Const., amends. V, VI). Defendant claims that the previously suppressed evidence was only
admissible for purposes of impeachment. Defendant further argues that the State’s use of his trial
testimony in its case-in-chief violated defendant’s right against self-incrimination by forcing his
testimony before the jury when he elected not to testify in his second trial. Finally, defendant
argues that his testimony at his first trial did not waive his constitutional protections under the fifth
and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, XIV) to
justify the State’s use of his suppressed statements in his first or second trial. This court reviews
the decisions of a trial court concerning the admission of evidence under the abuse of discretion
standard of review. People v. Bryant, 391 Ill. App. 3d 228, 244 (2009).
¶ 21 The State used defendant’s testimony given during his first trial, which was inclusive of
several suppressed inculpatory statements, as substantive evidence during its case-in-chief during
defendant’s second trial. The State presented the transcript of defendant’s prior testimony by
2
Defendant’s brief mentions the sixth amendment on three occasions, each in a heading, alleging
that the defendant’s statements were suppressed upon a finding of a violation of the defendant’s sixth
amendment rights. Defendant does not argue in his brief how the admission of his statements violated his
sixth amendment rights, nor was that argued before the trial court. Additionally, the trial court’s order does
not cite the sixth amendment as a basis for suppression. It is of note that, during a pretrial hearing on the
State’s motion to prohibit defense counsel from referencing defendant’s request for an attorney, the trial
court held, on March 15, 2018, as follows:
“So the Court ruled on the defendant’s motion to suppress. The Court’s watched these videotaped
statements. And having viewed them, I think referring to it as a request for counsel is misleading.
That certainly implies an attorney professional. And my recollection is that that is not what he asked
for. He never asked for an attorney. He never asked for counsel.”
In the present appeal, because defendant has never argued any facts showing a violation of defendant’s
sixth amendment rights, including before this court, and this court has no basis to believe the trial court
ruled that the original statements were taken in violation of defendant’s sixth amendment rights, we do not
analyze this case in the context of the sixth amendment.
9
reading the transcript into evidence. Defendant objected to such use before trial and preserved that
objection in a timely posttrial motion. Defendant argues on appeal that such use was an abuse of
discretion in that it violated defendant’s rights to due process pursuant to the fifth and fourteenth
amendments.
¶ 22 A. Basis for Initial Suppression
¶ 23 In order to determine whether defendant’s prior testimony was properly introduced in his
second trial, it is necessary to consider the reasons why defendant’s statements were suppressed,
why they were allowed to be used during his first trial, and for what purpose. Defendant made
confessions to shooting Hubbard during both his third and fourth interviews with police.
Defendant, in his brief to this court, argues that his statements made to the investigating officers
were suppressed because they were obtained in violation of the fifth amendment. The State does
not reference why defendant’s statements were originally suppressed but acknowledges that they
were.
¶ 24 The trial court entered a lengthy written order on March 14, 2017. According to the trial
court’s written order, defendant’s statements made during his third and fourth interviews were
suppressed based on a violation of Miranda, because the trial court found that defendant had
invoked his right to remain silent and that request was not scrupulously honored. Additionally, the
trial court found that defendant’s statements taken during his third interview were coerced by
threats from the officers which overbore the will of the defendant. Therefore, those statements
were found to be involuntary.
¶ 25 It is clear that a defendant who takes the stand may ordinarily be impeached by proof of
prior inconsistent statements. People v. Ladas, 12 Ill. 2d 290, 294 (1957). Such evidence is not
admitted as proof of the truth of the facts stated out of court but to cast doubt on the testimony of
10
the witness by showing his inconsistency, and an instruction to that effect should be given upon
request. People v. Kelly, 22 Ill. App. 3d 908, 915 (1974).
¶ 26 Defendant argues on appeal that his statements were improperly introduced during his first
trial because his direct testimony did not justify the introduction, through cross-examination, of
his suppressed statements. Defendant further argues that, where the introduction in the first trial
for purposes of cross-examination was improper, any references to the suppressed statements in
the State’s case-in-chief were unconstitutional pursuant to the defendant’s right to due process and
pursuant to the fifth and fourteenth amendments.
¶ 27 The defendant cites Justice Brennan’s dissent in United States v. Havens, 446 U.S. 620(1980), for the proposition that “impeachment by cross-examination about—or introduction of—
suppressible evidence must be warranted by defendant’s statements upon direct questioning.” Id.
at 630 (Brennan, J., dissenting). However, the majority in that case held that a defendant’s
statements made in response to proper cross-examination reasonably suggested by the defendant’s
direct examination are subject to otherwise proper impeachment by the prosecution, albeit by
evidence that has been illegally obtained and is inadmissible as substantive evidence of guilt. Id.
at 627-28 (majority opinion).
¶ 28 In Havens, the defendant testified and denied that he had ever engaged in the activity of
taping or draping cocaine around his body. Id. at 622. On cross-examination, the government asked
whether the respondent had anything to do with sewing makeshift pockets on codefendant’s T-
shirt and whether he had a T-shirt with pieces missing in his luggage, and he denied both questions.
Id. The government was allowed to introduce a previously suppressed T-shirt found in the
respondent’s luggage that was missing pieces that matched pieces sewn into the codefendant’s T-
shirt during rebuttal for purposes of impeaching respondent’s credibility. Id. The Havens case does
11
give some guidance in the proper use of suppressed evidence for purposes of cross-examination or
rebuttal evidence. However, in the present case, defendant was impeached during cross-
examination with statements suppressed pursuant to a violation of the prophylactic rules of
Miranda, as well as involuntary statements based on testimony given by the defendant during his
direct examination. The defendant’s statements given on direct examination were contradicted by
his suppressed statements to officers. As such, Havens, does not support defendant’s contention
that he did not, in his first trial, invite cross-examination with his suppressed statements.
¶ 29 1. Statements Suppressed Based on a Violation of Miranda
¶ 30 The exclusionary rule is a judicially created rule that aims to prevent evidence obtained in
violation of certain constitutional rights from being used against the defendant in a criminal
proceeding. People v. Maron, 2019 IL App (2d) 170268, ¶ 54. The purpose of the exclusionary
rule is to deter unlawful police conduct in the future. Id. The exclusionary rule is not a personal
constitutional right of the aggrieved party and is not concerned with situations where the
introduction of the unlawfully obtained evidence would itself exacerbate or constitute a violation.
Id.¶ 31 The United States Supreme Court has explained that whether otherwise excluded evidence
can be admitted for purposes of impeachment depends upon the nature of the constitutional
guarantee that is violated. Kansas v. Ventris, 556 U.S. 586, 590 (2009). For instance, the fifth
amendment is typically violated when a coerced confession is introduced at trial, whether
substantively or for impeachment purposes. Id. The introduction of the evidence is itself a
violation, and the evidence should be barred. Id. In contrast, the fourth amendment is violated
when the person is subjected to an unreasonable search or seizure, not when the fruits of that search
or seizure are introduced at trial. Id. at 591. Therefore, inadmissibility based on a fourth
12
amendment violation is not automatic; rather, admissibility is determined according to the
exclusionary-rule balancing test. Id. The same can be true for a fifth or sixth amendment violation,
if the violation was due to improper police conduct and not due to the very fact of the introduction
of the evidence at trial. Id. In those instances, prophylactic considerations apply, and the court
should conduct the exclusionary-rule balancing test to determine admissibility. Id.¶ 32 Regarding the defendant’s statements taken in violation of Miranda, the United States
Supreme Court recognized an exception to the exclusionary rule in Walder v. United States, 347
U.S. 62 (1954), permitting the prosecutor to introduce evidence obtained through an illegal search,
a fourth amendment violation, to undermine the credibility of defendant’s claim that he had never
possessed narcotics. The Court explained that a defendant is free to deny all of the elements of the
case against him without thereby giving leave to the government to introduce by way of rebuttal
evidence illegally secured by it and therefore not available for its case-in-chief. However, there is
hardly justification for allowing the defendant to affirmatively resort to perjurious testimony in
reliance on the government’s disability to challenge his credibility. Id. at 65.
¶ 33 The Supreme Court has insisted that “evidence that has been illegally obtained . . . is
inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt.”
(Internal quotation marks omitted.) James v. Illinois, 493 U.S. 307, 313 (1990). However, the
Court believed that permitting the use of such evidence to impeach a defendant’s testimony would
further the goal of truth-seeking by preventing defendants from perverting the exclusionary rule
into a license to use perjury by way of a defense. Id. The Court further believed that such use
would create only a speculative possibility that impermissible police conduct would be encouraged
and thereby concluded that the balance of values underlying the exclusionary rule justified an
exception covering impeachment of a defendant’s testimony. Id.13
¶ 34 The Miranda exclusionary rule may be triggered even in the absence of a fifth amendment
violation. Oregon v. Elstad, 470 U.S. 298, 306 (1985). A Miranda violation does not constitute
compulsion but simply affords a bright-line, legal presumption of compulsion whenever a
suspect’s statements are not preceded by Miranda warnings. Id. at 307. The presumption of
compulsion renders unwarned statements inadmissible in the prosecution’s case-in-chief, even if
those statements might be considered “voluntary” within the meaning of the fifth amendment. Id.Despite the fact that voluntary statements taken in violation of Miranda must be excluded from
the prosecution’s case, the presumption of coercion does not bar their use for impeachment
purposes on cross-examination. Harris v. New York, 401 U.S. 222, 224 (1971).
¶ 35 The facts in the present case are similar to those in Harris, 401 U.S. 222, and Oregon v.
Hass, 420 U.S. 714 (1975), where the Court upheld the use of statements taken in violation of
Miranda therefore unusable by the prosecution as part of its own case but admissible to impeach
statements made by defendant in the course of his direct testimony. The Harris Court also made
clear that impeachment by otherwise inadmissible evidence is not limited to collateral matters.
Harris, 401 U.S. at 225. In Harris, the defendant’s testimony concerning the events occurring on
the night of the crime contrasted sharply with what he told the police shortly after his arrest. The
Court held that the defendant’s statements, suppressed pursuant to the prophylactic rules of
Miranda, could be used to impeach the defendant’s testimony. Id. Similarly, in Oregon v. Hass,
the defendant requested an attorney and, without being provided one, showed an officer where
stolen property was located. Hass, 420 U.S. at 715-16. The statements made after the defendant
requested an attorney were suppressed pursuant to Miranda. Id. at 716. The Hass Court ruled that
“[a]s in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the
14
prosecution’s case in chief is barred for all purposes, always provided that ‘the trustworthiness of
the evidence satisfies legal standards.’ ” Id. at 722 (quoting Harris, 401 U.S. at 224).
¶ 36 In the present matter, defendant testified and gave his version of events occurring on the
night of the murder. That version conflicted with the suppressed statements that he had previously
made to police, wherein he admitted that he shot Hubbard, described the path that he ran after
shooting Hubbard, and described where he hid the gun. During cross-examination, defendant was
confronted with his prior statements and admitted to their making. Therefore, as to statements
made by defendant that were suppressed pursuant to Miranda, those statements made during his
fourth interview, there was no error in the trial court allowing the statements to be used in the
defendant’s first trial for purposes of impeachment.
¶ 37 2. Involuntary Statements
¶ 38 The trial court in this matter found that both of defendant’s confessions were obtained in
violation of the prophylactic rules developed in Miranda. The admissibility of those statements in
cross-examination required the trial court to engage in the exclusionary-rule balancing test.
However, the trial court also found that the police tactics used in defendant’s interrogation during
his third interview rendered the statements involuntary, where they overbore the defendant’s will.
The trial court held as follows:
“The Court also finds that the detectives created a coercive environment which
ultimately overcame the will of the defendant. This is demonstrated in the lengthy
portion of the transcript set forth above. The detectives did this by threatening the
arrest of the defendant’s younger brother unless the defendant told them what
happened. On cross-examination, Detective O’Neill admitted that the arrest of the
defendant’s brother was a ‘threat intended to elicit an emotional response.’ A
15
distinct scenario was explained to the defendant. This was done both verbally and
by the detective’s actions in directing other officers to immediately leave the police
station and arrest the brother. The detectives explained to the defendant that his
fifteen year old brother would be arrested at gunpoint. During that arrest, a shootout
might occur. His brother would then be having a ‘long, long, long night’ and be
placed in a cell with someone the detective ‘hoped wasn’t a really bad guy.’ ”
¶ 39 Generally, the question in voluntariness cases is “whether the defendant’s will was
overborne at the time he confessed.” Lynumn v. Illinois, 372 U.S. 528, 534 (1963). It is difficult to
interpret the trial court’s ruling as anything other than a finding that defendant’s confession given
during his third interview was involuntary.
¶ 40 The due process clause of the fourteenth amendment guarantees that no state shall “deprive
any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1.
The United States Supreme Court “has long held that certain interrogation techniques, either in
isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a
civilized system of justice that they must be condemned under the Due Process Clause.” Miller v.
Fenton, 474 U.S. 104, 109 (1985). Courts frame the legal inquiry usually through asking whether
the defendant’s confession was voluntary. Id.; People v. Davis, 35 Ill. 2d 202, 205 (1966) (“The
constitutional test for the admission of a confession in evidence is whether the confession was
made freely, voluntarily and without compulsion or inducement of any sort.”). Also, the fifth
amendment commands in pertinent part that no person shall be compelled in any criminal case to
be a witness against himself or herself. U.S. Const., amend. V. The fifth amendment’s self-
incrimination clause applies to the states through the due process clause of the fourteenth
amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964).
16
¶ 41 A fundamental principle of criminal procedure is that a confession must be voluntary;
otherwise, it is inadmissible. People v. Melock, 149 Ill. 2d 423, 447 (1992). The Illinois Supreme
Court has held that the voluntary character of an out-of-court statement must be established before
it may be used even for impeachment purposes. See People v. Adams, 1 Ill. 2d 446, 451 (1953);
People v. Hiller, 2 Ill. 2d 323, 327 (1954); People v. Tate, 30 Ill. 2d 400, 405 (1964). Compelled
incriminating statements are inadmissible for impeachment purposes. Mincey v. Arizona, 437 U.S.
385, 398 (1978). A criminal defendant is denied due process of law if his conviction is based,
wholly or partially, on the admission of testimony concerning that defendant’s involuntary
confession. Id. “Compelled or involuntary statements are excluded under the fifth amendment, not
as a means of deterring unlawful police conduct, but because such statements are regarded as
inherently untrustworthy and, thus, not probative.” People v. Winsett, 153 Ill. 2d 335, 352 (1992).
¶ 42 Based on the above, it is clear that the State should have been precluded from using the
defendant’s inculpatory statements obtained during his third interview, ruled by the trial court to
be involuntary, for purposes of impeachment during the defendant’s first trial. Nonetheless, they
were allowed to be used during cross-examination without objection when defendant testified.
Such use was a violation of defendant’s rights under the fifth amendment and to due process of
law.
¶ 43 B. Admissibility of Suppressed Statements at Second Trial
¶ 44 The next question is whether the testimony given during defendant’s cross-examination at
his first trial was admissible in a future hearing or trial as substantive evidence. The general rule
regarding a defendant’s earlier trial testimony is that it is admissible against him at a later trial.
Harrison v. United States, 392 U.S. 219, 222 (1968). A defendant who chooses to testify waives
his privilege against compulsory self-incrimination with respect to the testimony he gives. Id. In
17
permitting testimony from the first trial to be used in the second trial, it is assumed that a defendant
voluntarily availed himself of his right to testify during the earlier proceeding. See People v.
Moore, 19 Ill. App. 3d 334, 342 (1974).
¶ 45 The State argues that the transcript of defendant’s prior testimony was properly admitted
as substantive evidence during defendant’s second trial under Rule 801(d)(2)(A) of the Illinois
Rules of Evidence. Ill. R. Evid. 801(d)(2)(A) (eff. Oct. 15, 2015). The party-admission doctrine is
an exception to the hearsay rule. People v. Ramsey, 205 Ill. 2d 287, 294 (2002). A statement by a
party-opponent is not hearsay if it “is offered against a party and is *** the party’s own statement.”
Ill. R. Evid. 801(d)(2)(A) (eff. Oct. 15, 2015); see also People v. Aguilar, 265 Ill. App. 3d 105,
113 (1994). Such evidence is admissible if it is relevant to an issue in dispute and its probative
value is not substantially outweighed by its prejudicial effect. Aguilar, 265 Ill. App. 3d at 113.
¶ 46 The State cites United States v. Reed, 227 F.3d 763 (7th Cir. 2000), for the proposition
that defendant’s prior testimony, inclusive of cross-examination, was admissible regardless of
whether it was inculpatory or exculpatory and that the prior testimony was admissible under Rule
801(d)(2)(A) of the Federal Rules of Evidence 3 (Fed. R. Evid. 801(d)(2)(A)), which is identical to
Rule 801(d)(2)(A) of the Illinois Rules of Evidence. The Illinois rule provides as follows: “A
statement is not hearsay if *** [t]he statement is offered against a party and is *** the party’s own
statement, in either an individual or a representative capacity ***.” Ill. R. Evid. 801(d)(2)(A) (eff.
Oct. 15, 2015). The State correctly points out that Reed is not binding on this court but is persuasive
3
The Federal Rule of Evidence 801(d)(2)(A) excludes admissions by a party-opponent (which are
offered against the party) from the definition of hearsay because the adversarial process allows the party-
declarant to rebut his or her own admissions by testifying at trial. See Fed. R. Evid. 801(d)(2) & Advisory
Committee Note (“Admissions by a party-opponent are excluded from the category of hearsay on the theory
that their admissibility in evidence is the result of the adversary system rather than satisfaction of the
conditions of the hearsay rule.”); United States v. McDaniel, 398 F.3d 540, 545 (6th Cir. 2005).
18
authority, especially where the Illinois rule is modeled after the federal rule. People v. Craigen,
2013 IL App (2d) 111300, ¶ 44.
¶ 47 However, the Reed case is factually distinguishable, as the court in that case was not
deciding whether the defendant’s testimony about evidence that was subject to a suppression order
based on Miranda, the fifth amendment, or due process was properly admitted during a subsequent
trial as substantive evidence. In the present case, the issue of the admissibility of defendant’s
suppressed statements does not hinge on whether they are hearsay, but whether the statements
continued to be subject to the trial court’s suppression order. An out-of-court statement that is not
hearsay may, nonetheless, be inadmissible due to other rules of evidence. The fact that a statement
is not hearsay does not mean that it is not inadmissible for other reasons, such as the exclusionary
rule. Reed, therefore, offers us little guidance in the present case.
¶ 48 In general, under the law of the case doctrine, a rule established as controlling in a particular
case will continue to be the law of the case, provided the facts remain the same. People v.
Patterson, 154 Ill. 2d 414, 468 (1992). In People v. Henderson, 36 Ill. App. 3d 355 (1976), the
court noted that once a motion to suppress has been ruled upon by one judge, that motion cannot
be relitigated later before another judge, absent a showing of exceptional circumstances or of
additional evidence that has become available since the first hearing to suppress. Id. at 370. The
State’s position is that the cross-examination of defendant during his first trial with his suppressed
statements was proper to impeach statements made by defendant during his direct examination.
The lawful questioning resulted in new, legally obtained statements, made under oath, by a party
opponent that the State could then use substantively in its case-in-chief during the retrial of
defendant.
19
¶ 49 Defendant’s testimony acknowledged that he made the suppressed confessions. We have
answered the question above regarding the admissibility of involuntary confessions for purposes
of cross-examination and found that defendant’s statements obtained during his third interview
should not have been used by the State as impeachment evidence. There was no objection to the
impeachment evidence and defendant’s first trial resulted in a mistrial. However, the improper use
of defendant’s confessions for purposes of impeachment did not create new, lawfully obtained
confessions that the State could then use as substantive evidence. In fact, the admission in
defendant’s first trial of his coerced confession was itself a violation of his fifth amendment rights,
as well as his right to due process. The fifth amendment is typically violated when a coerced
confession is introduced at trial, whether substantively or for purposes of impeachment. Ventris,
556 U.S. at 590. The fact that the statements were improperly admitted during cross-examination
of defendant for purposes of impeachment did not mitigate the damage to defendant where the jury
heard a nonprobative, coerced confession and defendant’s admission to its making. The admission
of defendant’s coerced statements, even where admitted during cross-examination by the State,
was an abuse of discretion. As such, their admission during the State’s case-in-chief was a fifth
amendment violation and an abuse of discretion.
¶ 50 Regarding defendant’s statements suppressed pursuant to Miranda, the use of those
statements for purposes of impeachment during the first trial would have been subject to the
exclusionary-rule balancing test. The test for applying the exclusionary rule requires weighing the
likelihood of deterring future police misconduct against the costs of withholding reliable
information from the truth-seeking process. Maron, 2019 IL App (2d) 170268, ¶ 55. The
application of the balancing test typically bars unlawfully obtained evidence from being used
substantively at trial. Id. ¶ 56. The fact that the exclusionary rule should bar such evidence at trial
20
is so often taken for granted that we rarely see the balancing test performed in that context. Id.
Instead, the balancing test is most often used to determine whether the exclusionary rule should be
extended beyond its typical use to also bar unlawfully obtained evidence for nonsubstantive,
impeachment purposes at trial. Id.
¶ 51 The State is correct in asserting that Rule 801(d)(2)(A) of the Illinois Rules of Evidence
generally justifies the use of defendant’s prior testimony in the State’s case-in-chief. Such
statements made by a defendant under oath while testifying at his first trial are not hearsay pursuant
to the evidentiary rules. Rule 801(d)(2)(A) embodies the traditional rule that any statement of an
accused may be used against him as an admission except as may be excluded by the doctrine of
confessions or the privilege against self-incrimination. People v. Garcia, 95 Ill. App. 3d 792, 800
(1981).
¶ 52 It does not follow that the portion of defendant’s testimony in which he acknowledges the
making of statements that were the subject of the trial court’s suppression order, presented in the
first trial for purposes of impeachment and thus to be considered by the trier of fact only for
purposes of determining the credibility of defendant, was transmuted into substantive evidence by
the hearsay rules. Rule 801(d)(2)(A) does not trump the exclusionary rule since Rule 801(d)(2)(A)
does not address the exclusionary rule in any aspect. The exclusionary rule and hearsay rule are
two entirely different concepts, and there are different policy goals and evidentiary rules that
govern the basis for their exclusion from a trial. To be admissible against defendant, nonhearsay
evidence still must be relevant and not inadmissible for other reasons beyond hearsay, such as the
exclusionary rule.
¶ 53 In the 49-year history of Miranda, we are unable to find a reported case that has allowed
suppressed statements to be used as substantive evidence as the trial court has done in the present
21
case. The State has cited no authority expanding the use of suppressed statements in this manner,
and the court’s research has, likewise, not revealed authority from any jurisdiction sanctioning the
use of statements suppressed pursuant to the exclusionary rule as substantive evidence. Had
defendant made new statements while testifying, such as admissions to committing the crime,
those statements would of course be admissible in a future trial. However, where the statements
made during defendant’s testimony were simply an acknowledgment of the making of the
suppressed statements, the testimonial acknowledgments remain subject to the suppression order.
Those statements would remain admissible only for purposes of impeachment, should the
defendant have chosen to testify inconsistently during his second trial. The First District held in
Garcia that the admission of defendant’s written statement, which included admissions made by
defendant encompassing references to previously suppressed evidence, was error, even though
they were admissions of defendant. Garcia, 95 Ill. App. 3d at 800-01. Rule 801(d)(2)(A) does not
circumvent the exclusionary rule or the fifth and fourteenth amendments to the United States
Constitution.
¶ 54 The balancing approach in Walder and its progeny does not justify expanding the scope of
the impeachment exception to permit prosecutors to use an illegally obtained confession to
impeach the credibility of a defendant and then, if a mistrial occurs, to use the defendant’s
admission to the making of the suppressed statements substantively in a subsequent trial on the
same issue. If such a rule were approved, there would be no justification to limit the use of the
evidence to impeachment in the first trial, and the reasoning in Harris would be given little effect.
The evidence the State introduced at defendant’s second trial is the exact same evidence that the
jury heard in the first trial, except that it was read from a transcript instead of presented by live
witnesses.
22
¶ 55 The State cites section 115-10.1(c)(2)(B) of the Code of Criminal Procedure of 1963 (725
ILCS 5/115-10.1(c)(2)(B) (West 2018)) as additional authority for using the defendant’s
suppressed confession as substantive evidence. The State argues that the defendant’s statements
could have been used substantively during his first trial based on section 115-10.1(c)(2)(B), which
excepts from the definition of hearsay a statement that narrates, describes, or explains an event or
condition of which the witness had personal knowledge if the witness acknowledged under oath
the making of the statement at a trial, hearing, or other proceeding. Id. The defendant’s confession
was not admitted substantively during the first trial, nor could it have been. Procedural rules that
define hearsay and establish exceptions to the hearsay rule do not control the admissibility of
evidence that must be excluded for reasons other than hearsay. In the present case, defendant’s
confession was barred from use in the State’s case-in-chief by the exclusionary rule, not the
hearsay rule.
¶ 56 At the first trial, the defendant’s confession, if it were not suppressed, would have also
been excepted from the definition of hearsay under Rule 801(d)(2)(A) of the Illinois Rules of
Evidence. Ill. R. Evid. 801(d)(2)(A) (eff. Oct. 15, 2015). However, the statements were not
introduced as substantive evidence despite the hearsay rules because they were suppressed under
the exclusionary rule and the fifth and fourteenth amendments to the United States Constitution.
¶ 57 Rule 801(d)(2)(A) of the Illinois Rules of Evidence is an evidentiary rule excluding prior
statements of the defendant from the definition of hearsay. Id. The exception penalizes defendants
for committing perjury by allowing the prosecution to expose their perjury through impeachment
using illegally obtained evidence. Thus, defendants are discouraged in the first instance from
“affirmatively resort[ing] to perjurious testimony.” Walder, 347 U.S. at 65. But the exception
leaves defendants free to testify truthfully or exercise their rights under the fifth amendment to
23
choose not to testify; they can offer probative and exculpatory evidence to the jury without opening
the door to impeachment by carefully avoiding any statements that directly contradict the
suppressed evidence. The exception thus generally discourages perjured testimony without
discouraging truthful testimony.
¶ 58 Where defendant did not testify in his second trial, there was no justification for the use of
his suppressed statements as impeachment evidence. There was no possibility that he could pervert
the exclusionary rule into a license to use perjury by way of a defense. In the second trial, defendant
did not in any way present evidence through his own testimony that would have directly
contradicted his suppressed statements because defendant gave no testimony at all. As such, the
State was stripped of the necessity to utilize the narrow exception to the exclusionary rule carved
out in Harris.
¶ 59 There was no appeal between the mistrial and the second trial. The ruling rendered during
the first trial that defendant’s statements during the police interrogation were not admissible except
for impeachment purposes remained in effect at the second trial. The constitutional reasons for
excluding the evidence did not change from defendant’s first trial to his second trial. This court
does not find the State’s argument compelling that defendant’s testimony during cross-
examination rendered the suppressed statements no longer subject to the exclusionary rule.
Defendant’s trial testimony, where it referenced voluntary statements that remained subject to the
exclusionary rule, was admissible for purposes of impeachment where defendant testified in direct
contradiction to his suppressed statements. Defendant’s involuntary statements remained
inadmissible for impeachment purposes or substantively. Rule 801(d)(2)(A) does not operate to
make illegally acquired, nonprobative, and suppressed evidence admissible as substantive
evidence.
24
¶ 60 In reaching our conclusion that the suppressed evidence was improperly used as
substantive evidence in the second trial, we are persuaded by the analysis set out in People v.
Barton, 286 Ill. App. 3d 954 (1997). In Barton, a witness, McGuire, testified at defendant’s first
trial and was impeached with her prior inconsistent statement, a statement given to police in which
the witness stated that defendant admitted to her that he had been involved in the murder. Id. at
960. McGuire testified at the first trial that defendant was with her the entire evening that the crime
was committed and that he made no mention to her about a shooting on that date. Id. The State
then confronted McGuire with a four-page statement that she had given to a police officer wherein
she stated that defendant told her that a white female came to the front door of the trailer and fired
a shot and defendant fired a shot in return. Id. at 961.
¶ 61 Defendant argued that he was denied a fair trial due to the State’s use of McGuire’s prior
inconsistent statement as substantive evidence at defendant’s second trial. Id. at 960. McGuire
failed to appear at the second trial, and the trial court allowed her testimony from the first trial to
be read into evidence. Id. On appeal, this court noted: “It is black-letter law that a witness’s prior
inconsistent statement is admissible only to attack his credibility and cannot be admitted as proof
of the substance of the statement.” Id. at 961 (citing People v. Gant, 58 Ill. 2d 178, 185 (1974)).
¶ 62 A review of McGuire’s testimony made it obvious that the State’s introduction of
McGuire’s testimony from the first trial served no other purpose than to highlight the admission
of the defendant. This was clear because McGuire’s testimony at the first trial actually gave
defendant an alibi. The only plausible explanation for the State’s introduction of McGuire’s
testimony was to use McGuire’s prior inconsistent statement as substantive evidence against
defendant. Even though the trial court instructed the jury that the prior inconsistent statement could
only be used to assist in deciding the weight to be given the testimony at trial, the Barton court
25
held that did not cure the problem. Id. This court found that it was plain error for McGuire’s
testimony from the first trial to be introduced by the State at the second trial as substantive
evidence. Id. at 960.
¶ 63 Similarly, in the present case, defendant’s trial testimony largely consisted of defendant’s
version of events on the night of the murder and his denial of any involvement. Defendant, while
subject to cross-examination, was impeached with his suppressed confessions. Defendant’s
testimony at the first trial, other than the impeachment evidence, did nothing to advance the State’s
case as it largely consisted of his denial of any involvement in the crime.
¶ 64 Based on the above analysis, defendant’s statements to police, which were suppressed,
were not admissible in the second trial as substantive evidence in the State’s case-in-chief. After
considering the evidence as a whole, we conclude that defendant’s conviction was based in part
on the incompetent evidence presented during the reading of defendant’s testimony from the first
trial in which his prior inconsistent statements, consisting of suppressed confessions, were
improperly used as substantive evidence against him. Defendant’s prior inconsistent statements
contained suppressed confessions that remained subject to the trial court’s ruling that the
statements were inadmissible in the State’s case-in-chief. Further, defendant’s confessions
obtained during his third interview were involuntary and thus should not have been used for any
purpose. The State’s use of the illegally obtained statements, which bear directly on a defendant’s
guilt or innocence, as substantive evidence of defendant’s guilt in the second trial defeated the
important substantive policies and functions underlying Miranda and the established exclusionary
rules and violated defendant’s fifth amendment privilege against self-incrimination.
26
¶ 65 C. Harmless Error
¶ 66 That does not end our inquiry. This court has held that the improper admission of a
defendant’s statements to the police is subject to a harmless-error analysis (People v. Mitchell, 152
Ill. 2d 274, 328 (1992)), except in cases involving the use of physically coerced statements. People
v. Wrice, 2012 IL 111860, ¶ 71. The admission of such a confession is a “trial error,” which occurs
during a case’s presentation to the trier of fact and “may therefore be quantitatively assessed in the
context of other evidence presented in order to determine whether its admission is harmless beyond
a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991).
¶ 67 Under a harmless-error analysis, the critical question is whether it appears beyond a
reasonable doubt that the error did not contribute to the verdict. People v. Patterson, 217 Ill. 2d
407, 428 (2005). There are three different approaches to answering this critical question:
(1) analyzing the other evidence from the case to determine if that evidence overwhelmingly
supported the defendant’s conviction, (2) focusing on whether the error contributed to the verdict,
and (3) determining whether the improperly admitted evidence was merely cumulative to the other
evidence properly admitted at trial. Id. In the present case, (1) the other evidence did not
overwhelmingly establish that the defendant was the shooter, (2) evidence of the suppressed
statements unquestionably contributed to the defendant’s conviction, and (3) the improperly
admitted evidence was not cumulative of the other evidence. Therefore, we cannot conclude that
the improper admission of the suppressed statements as substantive evidence in the second trial
was harmless.
¶ 68 A confession is like no other evidence. In fact, a defendant’s own confession is probably
the most probative and damaging evidence that can be admitted against him. Fulminante, 499 U.S.
at 296. This is because the defendant’s admissions “ ‘come from the actor himself, the most
27
knowledgeable and unimpeachable source of information about his past conduct. Certainly,
confessions have profound impact on the jury, so much so that we may justifiably doubt its ability
to put them out of mind even if told to do so.’ ” Id. (quoting Bruton v. United States, 391 U.S. 123,
139-40 (1968) (White, J., dissenting)). The State presented evidence of two interviews, both of
which produced confessions from defendant. In the case of defendant’s coerced confession, “the
risk that the confession is unreliable, coupled with the profound impact that the confession has
upon the jury, requires a reviewing court to exercise extreme caution before determining that the
admission of the confession at trial was harmless.” Id.¶ 69 There was no physical evidence tying the defendant to the murder. The State did not present
any evidence of a motive for the crime other than within the defendant’s suppressed statements.
Aside from the State’s use of the evidence of defendant’s prior confessions, the evidence pointing
to defendant included the fact that defendant lived in the same neighborhood as the location of the
crime, a statement by defendant’s friend, Melvin Hamler, and defendant’s little brother, Ahmad
Sanders.
¶ 70 Hamler testified that at the time of the shooting, he was walking by the area where the
shooting occurred. His back was to Hubbard when he heard gunshots. He turned around for a half
second and started running. Hamler was on the phone and saw defendant in a dark hoodie with the
hood pulled up. During cross-examination, when asked if he recognized the person he saw as the
defendant, he replied, “Yeah, I guess.” He was impeached with prior testimony when he said that
he could tell who it was “a little bit.” When asked, “So you’re saying now when you see somebody
with a hoodie on you can’t really tell who it is. Is that what you just said?” the witness responded,
“All you can see is mouth to nose, you know what I’m sayin’? You can tell a person mouth to
nose.”
28
¶ 71 Defendant’s younger brother, who was 15 at the time of his interview with police, testified
that he implicated defendant as the shooter when interviewed by the police. At the trial, he denied
making many statements to police implicating defendant in the murder. The statements that
defendant’s younger brother denied making were reflected on a recording of his interview that was
admitted into evidence by the State for purposes of impeachment. During his testimony, where he
did eventually admit making statements implicating defendant, defendant’s younger brother
denied the truth of the statements he gave to the officers during his interview. He did admit to
saying that he saw defendant commit the murder but explained that he was lying because he was
afraid of the police because they were threatening to lock him up and had told him that he would
not be allowed to play sports.
¶ 72 The murder weapon was never recovered. In addition, we note that the surveillance camera
footage of the shooter does not provide a picture clear enough to identify defendant as the shooter.
While there is certainly some evidence tying defendant to the crime, it cannot be said that the
evidence overwhelmingly supported defendant’s conviction. The fact that defendant’s first trial
resulted in a hung jury supports this conclusion.
¶ 73 The erroneous admission of suppressed evidence in the second trial undoubtedly
contributed to the verdict, and the error was not merely cumulative to the other evidence presented
in the trial. Evidence that defendant admitted to confessing the crime is one of the most crucial
pieces of evidence for the jury to consider in finding a defendant guilty of first degree murder.
Defendant did not testify during his second trial. The State read the entire transcript of his
testimony given during his first trial, including many suppressed inculpatory statements. Further,
the trial court gave no limiting instruction on the purpose for which the jury could consider the
29
suppressed statements. One of the suppressed statements was: Question: “Did you tell detectives
that you shot James Hubbard?” Answer: “I did tell detectives that I did that.”
¶ 74 The improper admission of defendant’s statements to the police was not harmless, and his
conviction cannot stand. The introduction of this highly prejudicial evidence was an abuse of
discretion and a trial error, and as such, his conviction for first degree murder cannot stand.
¶ 75 Although we have concluded that defendant’s conviction for first degree murder cannot
stand, we must determine whether to reverse it outright or remand the matter for a new trial. Under
the double jeopardy clause of the United States Constitution’s fifth amendment, no person may
“be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend
V. Similar provisions also exist in the Illinois Constitution (see Ill. Const. 1970, art. I, § 10) and
in our statutes. See 720 ILCS 5/3-4(a) (West 2018).
“The cornerstone of the double jeopardy clause is ‘that the State with all its
resources and power should not be allowed to make repeated attempts to convict an
individual for an alleged offense, thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though innocent he may
be found guilty.’ ” People v. Williams, 188 Ill. 2d 293, 307 (1999) (quoting Green
v. United States, 355 U.S. 184, 187-88 (1957)).
¶ 76 Although the double jeopardy clause forbids the retrial of a defendant to afford the State
another opportunity to present evidence it failed to present in the first trial, it “does not preclude
retrial when a conviction has been overturned because of an error in the trial proceedings.” People
v. Drake, 2019 IL 123734, ¶ 20. However, if the evidence presented during the first trial was
insufficient to support a defendant’s conviction, he cannot be retried. Id. “[F]or purposes of double
30
jeopardy all evidence submitted at the original trial may be considered when determining the
sufficiency of the evidence.” People v. Olivera, 164 Ill. 2d 382, 393 (1995). That is to say, even
though we have determined that defendant’s statements to the police and the reference to those
suppressed statements during defendant’s trial testimony should not have been introduced during
his second trial as substantive evidence, in determining whether the double jeopardy clause forbids
a retrial, we nevertheless consider those very statements. See People v. Lopez, 229 Ill. 2d 322, 367
(2008) (for purposes of double jeopardy, “we consider whether the evidence presented at trial,
including the now-suppressed handwritten statement, was sufficient to convict”). If there was
sufficient evidence presented at the first trial to support a defendant’s conviction, retrial is the
proper remedy. Drake, 2019 IL 123734, ¶ 21. In considering the sufficiency of the evidence, we
must determine “whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Lopez, 229 Ill. 2d at 367.
¶ 77 In the present case, viewing the evidence in the light most favorable to the State and
including defendant’s testimony from his first trial regarding his suppressed confessions, a rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Accordingly, the double jeopardy clause does not bar retrial, and this case must be remanded to
the circuit court for retrial without the suppressed evidence. On retrial, defendant’s statements
during his third interview may not be used against him, as such use would violate his rights under
the fifth amendment. The defendant’s statements during his fourth interview, suppressed pursuant
to a Miranda violation, are admissible only if defendant testifies inconsistently with those
suppressed statements at his retrial.
31
¶ 78 Finally, the State raised the issue that the federal circuits, in reviewing admissibility of
prior testimony, are split on the issue of whether the testimony should be wholesale admitted or if
the court should evaluate the admissibility of each portion of a defendant’s prior testimony before
admitting it at a subsequent trial. We have authority to address claims that we find likely to recur
on remand. People v. Walker, 211 Ill. 2d 317, 343 (2004). With limited exception, however, courts
should refrain from deciding an issue when resolution of the issue will have no effect on the
disposition of the appeal presently before the court. Italia Foods, Inc. v. Sun Tours, Inc., 2011 IL
110350, ¶ 41. As we believe that the trial court’s review of the transcript for evidentiary issues
occurring within the transcript of defendant’s prior trial testimony is necessary for the disposition
of the appeal presently before this court, we will address this issue.
¶ 79 In the present case, defendant objected to the admission of his prior trial testimony in total.
The State indicated it would voluntarily redact a section of the prior testimony that it believed to
be prejudicial, 4 which included questioning of defendant about an outburst at his first trial. The
trial court acknowledged, in ruling on the admissibility of the transcript that the prior testimony
was admissible, that
“[i]n reading this [transcript], I can see how there could be some confusion. It’s
somewhat—actually it’s probably best that I wasn’t at the last trial. Because in reading this
transcript it refers to prior testimony of that day, prior testimony of other individuals. I
don’t know how that’s all going to play out in the next trial.”
This statement by the trial court tends to indicate that the trial court did notice some evidentiary
issues within the transcript; however, these portions were not redacted. That said, the trial court
4
As referenced above, it appears that the portion of testimony that the State agreed to redact
concerning an outburst that defendant had during the first trial was actually read into evidence.
32
did admonish defense counsel that any further redactions from the transcript could be revisited
prior to the beginning of the trial, and counsel did not raise any further objection.
¶ 80 The trial court should review prior testimony for compliance with the Illinois Rules of
Evidence before allowing such testimony to be admitted in a subsequent trial. While prior
testimony may be admissible under one or more rules of evidence, it does not follow that
defendant’s prior testimony is automatically admissible in its entirety.
¶ 81 For example, in People v. Hoerer, 375 Ill. App. 3d 148 (2007), the court held that the
defendant received ineffective assistance of counsel where defense counsel stipulated to the
admission of defendant’s prior testimony that he had given in a codefendant’s case, which included
his admission that he engaged in plea negotiations with the State. Id. at 155. The portion of
defendant’s testimony about prior plea negotiations was inadmissible in defendant’s trial pursuant
to Illinois Supreme Court Rule 402(f) (eff. July 1, 1997), even if the remainder of his testimony
was admissible. Hoerer, 375 Ill. App. 3d at 154.
¶ 82 The parties have failed to cite, and this court has failed to reveal, any Illinois case law on
the issue of how to treat a defendant’s testimony at a second trial where the defendant does not
testify. There are a few instances where federal courts have addressed this issue, and we
acknowledge those cases as persuasive authority. In the rare instances where courts have faced the
question of how to treat such evidence, courts have indicated that evidentiary rules do apply.
United States v. Toombs, 713 F.3d 1273, 1279 (10th Cir. 2013). The Toombs court noted several
federal cases dealing with prior testimony of a defendant, quoting Edmonds v. United States, which
held that “ ‘[t]he fact that the defendant does not take the stand at the second trial does not prevent
the use of his testimony given at the former trial, if it would otherwise be admissible.’ ” Id. (quoting
Edmonds v. United States, 273 F.2d 108, 113 (D.C. Cir. 1959)). The Toombs court also cited
33
United States v. Grunewald and noted its holding that “ ‘prior trial testimony of [defendant] is
properly admissible, assuming it otherwise satisfied the standards of relevancy and materiality.’ ”
Id. (quoting United States v. Grunewald, 164 F. Supp. 644, 646 (S.D.N.Y. 1958)). Toombs further
addressed United States v. Hanrahan, where the court noted that the defendant’s prior trial
testimony was “ ‘not hearsay because . . . it was an admission by a party-opponent’ ” in discussing
whether the evidence was properly admitted. Id. (quoting United States v. Hanrahan, 508 F.3d
962, 967 n.2 (10th Cir. 2013)). Similarly, in United States v. Bohle, 475 F.2d 872 (2d Cir. 1973),
the Second Circuit weighed the probative and prejudicial value of a defendant’s prior testimony in
considering admissibility. Toombs, 713 F.3d at 1279. The Toombs court cited this federal
precedent and concluded that the district court should have evaluated the testimony under the
Federal Rules of Evidence before admitting it into evidence. Id.
¶ 83 In the present case, the trial court allowed defendant’s prior testimony into evidence over
defendant’s objection. The trial court allowed both parties the opportunity to address any
evidentiary issues within the transcript. The State voluntary agreed to redact certain statements it
believed were prejudicial with agreement of defense counsel. Defense counsel did not request any
further redaction, though given an opportunity to do so.
¶ 84 However, the trial court did, sua sponte, notice an evidentiary issue. In addition to the
reference to defendant’s suppressed confession, the first four pages of the transcript of defendant’s
cross-examination involved the State repeatedly asking defendant to comment on the veracity of
the testimony of the State’s witnesses from the first trial. The jury in the second trial did not hear
the testimony of the other witnesses from the first trial, further compounding the issue, where in
the second trial the jury heard testimony of defendant, commenting on the veracity of the
witnesses’ testimony, which they had not heard.
34
¶ 85 It is highly improper for a prosecutor to ask a defendant’s opinion of the veracity of other
witnesses. People v. Dowd, 101 Ill. App. 3d 830, 844 (1981). Such questioning invades the
province of the jury, for it infringes upon their function of determining the credibility of the
witnesses. Id. The prosecution’s practice of asking a criminal defendant to comment on the
veracity of other witnesses who have testified against him has consistently and repeatedly been
condemned by this court because such questions intrude on the jury’s function of determining the
credibility of witnesses and serve to demean and ridicule the defendant. Id.¶ 86 While the trial court did appropriately give defendant the opportunity to object to items
within the transcript that should be excluded and to provide a basis therein, where the court noted
the evidentiary issues on the record, those issues should be addressed. Prior to retrial, if the State
again seeks to introduce portions of defendant’s testimony at his first trial, consistent with this
opinion, those portions should be reviewed for their compliance with the Illinois Rules of
Evidence.
¶ 87 Based on the above, it is unnecessary for this court to address defendant’s argument that
the trial court abused its discretion in failing to conduct a formal inquiry regarding alleged jury
misconduct.
¶ 88 III. CONCLUSION
¶ 89 For the forgoing reasons, the judgment of the circuit court of Madison County is reversed,
and this cause remanded for a new trial consistent with this opinion.
¶ 90 Reversed and remanded.
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No. 5-18-0339
Cite as: People v. Sanders, 2021 IL App (5th) 180339Decision Under Review: Appeal from the Circuit Court of Madison County, No. 15-CF-
1880; the Hon. Neil T. Schroder, Judge, presiding.
Attorneys Celestine Dotson, of St. Louis, Missouri, for appellant.
for
Appellant:
Attorneys Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick
for Delfino and Patrick D. Daly, of State’s Attorneys Appellate
Appellee: Prosecutor’s Office, of counsel), for the People.
36