*1 project. seriously The letters indicate NCC did not believe there was an change position. adverse material Israel’s by conduct,
NCC should be bound Focus’ as well as its own. This joint enterprise between NCC and Their participation Focus. agreement expressly said that "servicing agent” Focus was act as for the judge loan. At "Well [counsel said: for NCC] concedes that for purpose disbursing loan, agrees that represented, fact, Focus NCC.” That by accurate statement trial court. court, In its brief in this agency question NCC refers as a "non-issue.” The majority finds the support record does not Israel’s argument the trial nonagency court’s determination of preju- unduly diced affected the outcome of the trial. agency ought issue conduct, seriously. be taken more If NCC is by
bound Focus’ part it is wilful breach Focus that may proved by I evidence. believe Israel should a fair have reason, chance prove theory. For I would reverse the judgment court’s and remand breach of contract case for a new trial. ILLINOIS,
THE PEOPLE OF Plaintiff-Appellee, THE STATE OF SAMv. McDONALD, Defendant-Appellant. (1st Division)
First District No. 1 — 92—3605 Opinion filed November *2 J., dissenting. WOLFSON, Vollen,
Jeffrey Chicago, appellant. S. for (Renee Goldfarb, Attorney, O’Malley, Chicago Michael Jack State’s counsel), Attorneys, Cho, Simon, and Kevin Assistant State’s People.
468
PRESIDING CAMPBELL opinion JUSTICE delivered the of the court:
Following trial, defendant, McDonald, a bench Sam was convicted degree of the first years’ murder Aaron Ranson and sentenced (1) imprisonment. appeal, defendant contends that: was not (2) proved guilty beyond doubt; improperly reasonable the trial court (3) hearsay evidence; admitted and considered he was denied ef- following reasons, fective assistance of counsel. For the we affirm the judgment of the trial court. following record reveals the relevant facts. Defendant and Ware, George Dorsey
codefendants Kendall Tyrone Jones were charged by information with attempted robbery armed and three counts of first degree murder. Prior to defendant’s motion to granted, although sever was his trial was simultaneously conducted with the trials of Jones and Ware.1 trial, Mary
At September Ranson testified that on her grandson, Aaron, left Street, her home located at 2222 South State Chicago, approximately day, a.m. Later that same Mary saw Aaron dead the second floor of a located at 2320 South State Street.
Next, Chicago police Ellen detective Weiss testified that on partner, McGuire, she and her Detective Robert investigated Ranson, shooting fatal of Aaron "Pappy,” a.k.a. gallery South State. From the second-floor of the building, the *3 pool detectives a observed of blood and scattered bullets. The detec- tives interviewed several the witnesses at scene and called an assis- Attorney tant State’s to obtain witness statements. Avery
Kashma then on testified behalf of the State that he is cur- rently custody in pending and has a case in criminal court for the charge of Avery home invasion. he stated that received no deals or promises exchange testimony expected in his and that he no special treatment from the authorities.
Avery then in testified that the summer of he lived in an apartment Indiana, at along godmother, located 2140 South with his Captóla defendant, brother, Payton, and defendant’s Dean Kendall. Avery’s apartment Defendant lived in for approximately two months during the apartment summer and then moved back into in the November 1990.
Approximately Thanksgiving week and half before nonpublished 1Ware’s conviction was affirmed in a order this of court (1st pursuant Supreme filed Court Rule 23. See v. Ware Dist. Febru ary 23, 1995), No. 1 — 92—4072. apart- of kitchen his the with defendant
Avery had a conversation sister, Ken- Allison Payton and defendant’s ment, of presence to the accompany her Payton told that he could Defendant dall. Pappy’s [were] and brother "the store on State Street because Avery kitchen, said to defen- Payton looking for him.” After left the no, replied that dant, Defendant thought "I that was over with.” Avery case going he was jail. asked defendant what he had been never going to wait until the responded and that he was to do defendant caught, and turn himself in. "other two” were then 20, 1990, Avery later, days approximately November A few on kitchen, Avery and asked defendant were alone in the defendant day shooting. replied Defendant really happened what on him, day prior shooting, attempted Ranson to rob that on the to the and two day shooting, defendant but was unsuccessful. On gambling the second floor other men heard that Ranson was on individual, Defendant, along a third projects. with "T.Y.” and floor, they guns, up to the "and armed themselves with went second T.Y. against lined he said that [defendant] them the wall and them, searching Defen- finished him.” [defendant] searched said, move, Avery get T.Y. "[N]o dant further told one won’t stated, moved, shot.” Defendant then started "Someone shooting.” Avery reported police on these conversations to December 27, 1990. cross-examination, Avery that he had been offered stated
six-year exchange guilty plea. Avery stated sentence for a further that at his reported the time conversations with defendant angry police, defendant because defendant had moved with angry apartment, out and he Allison Kendall because money Avery cur- she owed him for back rent. added that Kendall rently money. him no owes
The State then called De Andre as a Prior to Wakefield witness. testimony, right his the trial court determined had no Wakefield testify by invoking to decline fifth amendment. examination, failed
Subsequently, direct to answer invoking approximately almost all amendment questions, fifth occasions, disobeyed trial times. On at least nine directing question. At the court’s order him to answer the conclusion testimony, contempt of his court Wakefield in direct found of court. this cross-examination, *4 Wakefield stated that proceeded then the fifth amend- the truth. Wakefield invoke response questions. response questions
ment in In series 10, counsel, September on of defense Wakefield then testified that 1990, gave statements to Weiss and Detectives McGuire presence Attorney of an assistant State’s the 51st and Wentworth police station. Wakefield that he stated was under arrest at that time.
Thereafter, present Wakefield testified that he when Ranson was approximately shot. Wakefield stated that at 11:30 a.m. 1990, September 10, on High he left Phillips Wendell School and Chicago Authority rode a Transit bus to 2310 South State Street. As bus, noon, approximately descended the ap- Anton Hamilton proached him and informed him that Ranson had been shot. Wake- field and Hamilton ran to shooting, the second-floor scene the police told them leave the floor. Wakefield became embroiled argument in an with the and was arrested for disorderly conduct.
Wakefield further that September Chicago stated on po- lice detectives apartment Weiss and McGuire arrived at his located at 2222 South State Street and him escorted to the criminal court car, the squad While in the detectives asked why trying he was to run. Wakefield that stated the detectives were tell- ing trying get him "lies” say him to "they” that murdered Ranson. testifying grand jury had, recalled before the that he fact, been outside at 2320 South State at the time However,
Ranson was shot. Wakefield insisted that none of the state- grand jury ments he made before the were true. Wakefield further gave that the testified statement he to Detectives Weiss and McGuire him not true and that he to them lied because the detectives told drop that disorderly would against case him. Wakefield stated grand that after he at the jury, disorderly testified case was dismissed. Defense then following testimony counsel elicited the from Wakefield:
"Q. client, say you my You that know Sam?” A. Yeah.
Q. you today? wearing Would describe what he’s A. Brown DOCsuit.
Q. May my the record reflect he’s identified client: THE COURT:Sure.
Q. 10th, September Did see Sam at time 1990? on No.” A. parties stipulated asked the follow- then Wakefield was
ing questions gave following grand jury answers before the September on 1990:
"Q. DeAndre, you 11:30 a.m. — at *5 Chicago, City Street you State near 2320 South County, Illinois? Cook answer.]
[No
Q. you did see there? And who Tyrone
A. Jones. . Tyrone Jones? Q. long you known how have And eight years. A. About ten
Q. you anyone else there? see And did Dorsey. A. Kendall long you Q. Dorsey, known him? how have And Kendall my up together. A. All life. Grew
Q. you? are How old
A. Seventeen. years? Q. you him for have known seventeen And so A. Uh-huh.
Q. you else did see there? And who George
A. Ware.
Q. you long How have known Ware? years.
A. Three Q. you anyone And see else there? did A. Sam.
Q. youDo remember last name? Sam’s A. Davis.
Q. you long Sam How have known Davis? July
A. Since
Q. roughly So two months?
[Wakefield nodded]
Q. you doing? did four men And what see these Coming going in back A. out of the front of 2320 and around coming building weapons. in the with
Q. you say you you So saw 2320. And when them exit mean 2320 State Street?
A. Yes.
Q. holding they building, you saw When walked out of the them you holding? them something? What did see Tyrone a nine millimeter. A. Saw Jones with anything? Q. Dorsey with you Did see Kendall A. Tech nine.
Q. nine, Tech what?
A. Semi.
Q. Ouzi [szc][?]
A. Yes.
Q. you George did see Ware with? What A. A revolver.
Q. you see Davis with? What did Sam AA. revolver.
Q. happened you What after saw them walk back into 2320 weapons? South State with these
A. It was about eleven shots fired.
Q. And coming these eleven shots were from where? A. From inside the n Q. say at, you building,’ When 'inside the where 2320 South—?
A. 2320 South State Street.
Q. happened? And what up A. Me and Michael run on the floor. second * * * Q. happened And what after Steve told killed Pappy? floor, Me up
A. and Michael had run on the second and then we Pappy. saw
Q. And Pappy what condition was in when found him? gunshot laying A. He on the floor with a [sic] wound the middle of his head.”
The State then recalled Detective Weiss. Detective Weiss testified 10,1990. that she September interviewed Wakefield on Neither Weiss nor partner, McGuire, her Detective threatened nor Wakefield did any promises exchange make for Wakefield his statement. Weiss not juvenile aware that on form pa- Wakefield was role at the time. began testify
Weiss as to what told regarding Wakefield her shooting, the objected hearsay. and defense counsel on Citing based (725 section 115—10.1 of the Code of Criminal Procedure of 1963 (West 1992)), argued ILCS defense counsel that Weiss’ 5/115 —10.1 testimony testimony was not inconsistent with Wakefield’s because gave statement, while Wakefield testified that he in the a fact he also testified that the statement was not true. The trial court objection, stating overruled defense counsel’s as follows: very "The issue is was the statement on [sic] made October 10th today. of 1990 inconsistent with what he tells us the truth is And inconsistent, going reason would and I’m to overrule your objection.” then
Detective Weiss testified that Wakefield made a statement 10, 1990, morning September as On approximately follows: at a.m., Hamilton 11:30 Wakefield and Anton at the north end of building they commonly located at South in an area State sprinklers. refer to as the and Hamilton Wakefield saw Ranson and sitting talking a nearby individual named Sean Holman and on building. while, and entered Ranson Holman After a short bench. later, and codefendants saw defendant five minutes Wakefield About building. Each of fire toward the walking through the lanes a .357 handgun. Defendant carried armed with a defendants was ran and pocket. Defendant codefendants right, front magnum in his thereafter, Shortly Wakefield building. stairway of the up the back asked dumpster. a Wakefield and cover behind heard shots took gallery. he was on the second-floor was and was told where Ranson bleeding lying on the floor upstairs and Ranson ran saw Wakefield wound. the head as result of bullet from appeared before September Detective Weiss grand to the jury. transport Wakefield grand Detective Weiss did time, Wakefield At that jury but encountered him the courthouse. Mary Ranson. Weiss company grandmother, inwas of Ranson’s gave go jury his state- grand did not into the room while Wakefield ment, to the contents partner nor she or her coach did grand jury. of his before the 10, 1990, she September that on
Detective Weiss further testified shooting. millimeter casings shell at the scene observed 9 testimony of As- parties stipulated impeachment then she Attorney Morask would state that sistant State’s Laura Morask. presence of in the interviewed Wakefield that he and Detectives Weiss and McGuire. Wakefield told Morask Anton at the end of the at 2320 South Hamilton were north when, a.m., Don approximately State Street 11:30 he observed later, building. minutes Sean Ranson enter Five know, Jones, Dorsey, Sam, saw who’s last name he did not and Ware. handgun in Wakefield stated that Sam had a 9 millimeter the back pants, right pocket. of his in his front Defendant .38-revolver A building, entering others walked around the from rear. later, short time Wakefield heard several shots fired from within *7 parties testimony stipulated The further to of Assistant Cook County Mytra Kalekar, performed autopsy Medical Examiner who multiple Ranson and as a of determined that died result gunshot wounds. parties stipulated Sergeant that if Jackson were to further J. 1990,
testify, 10, he would state that at noon on Wakefield State; police investigation of South that the scene 2320 while the Sergeant away Jackson ordered Wakefield from the scene being discovered; refused to leave evidence was and that Wakefield began Sergeant state that Wakefield the scene. Jackson would further gathered. police, as profanities to shout toward the a crowd loud 474 Wakefield,
Fearing danger, Sergeant subsequently Jackson arrested signing complaint charging disorderly a Wakefield with conduct.
Finally, stipulated parties that Wakefield was convicted of robbery 20, aggravated armed February unlawful restraint on trial 1, court entered into evidence defendant’s exhibit No. copy Avery’s pending certified of Kashma criminal case. Kendall, sister,
Allison defendant’s then testified on defendant’s behalf that she did recall not conversation the kitchen of Avery’s apartment go wherein defendant stated that could to looking store because the him. Kendall admitted Avery money that she owed apartment, when she moved out Avery her, that money Avery demanded the from and that angry money. with her she him because owed
Following closing arguments, the trial court found defendant guilty degree first hearing, murder. After a the trial court 25-year imprisonment. sentenced defendant to a term of timely appeal Defendant’s followed.
Initially, proved guilty defendant contends that he was not be- yond a reasonable doubt.
A criminal conviction will not be set aside on review unless the improbable unsatisfactory evidence is so it creates reason- (1992), guilt. able v. (People Campbell doubt the defendant’s 146 Ill. 374, 363, 1261; (1985), 237, 2d N.E.2d People 586 v. Collins 106 Ill. 2d 267.) 261, responsibility 478 N.E.2d Because it is the of the trier of fairly evidence, testimony, weigh fact to resolve conflicts and to draw reasonable from inferences basic facts ultimate facts (1989), 1, (People 453), Young v. 128 Ill. 2d N.E.2d this court judgment will not substitute its for that of the trial court will unreasonable, not reverse a conviction unless the so evidence is improbable, justify unsatisfactory or so as to a reasonable doubt of guilt. defendant’s 146 Ill. Campbell, 2d at 375. case, present grand
In jury testified before the defendant, Davis,” saw whom he identified as "Sam walk out revolver, carrying 2320 South State then reenter then about heard fired and afterward discovered shots body. dead Hanson’s
The record shows that the trial court relied on Kashma Avery’s testimony grand jury trial and De Andre Wakefield’s testimony convicting pre the defendant. The court had rogative reject accept Wakefield’s trial instead grand jury testimony, as Wakefield’s well his statement Detec (See tive App. Weiss. v. Lee 243 Ill.
475 1002, (1989), 536 App. Ill. 3d 108; 182 People v. McBounds N.E.2d 1225.) made its deci the trial court record indicates that N.E.2d The to and refusal contemptuous behavior based on sion Wakefield’s at trial was prosecutor. The evidence asked the questions answer a reasonable doubt. guilty beyond find to defendant sufficient improperly admit- that the trial court further contends Defendant to Weiss. statement Detective evidence Wakefield’s ted substantive Mc- "Sam stated he saw Weiss testified that Wakefield Detective armed with building at 2320 South State Street Donald” enter the to position that had his statement magnum. is defendant’s .357 It admitted, con- been there would be no evidence Detective Weiss not jury, murder, grand necting him to the because the scene, "Sam Davis” at the and Morask testified testified that saw not the name of the "Sam” individual that Wakefield did know last argues that he saw at the scene of the crime. Defendant Wakefield’s as substantive evidence statement should not have been admitted through testimony prosecutor the Weiss because the Detective prior lay eliciting inconsistent proper failed to foundation 10.1(c)(2) pursuant to section of the Code of Criminal statement 115— (West 1992). Procedure. 725 ILCS 5/115 —10.1 argument has The record shows that defendant waived this through specific objections, by failing properly preserve review (1988), post-trial in his v. 122 (People both at trial and motion. Enoch 1124.) 190, Nevertheless, Ill. 2d we that the trial 522 N.E.2d find through properly court admitted Wakefield’s statement 10.1(c)(2). of Detective Weiss under section 115— proper A must laid foundation before inconsistent necessary are Part statements allowed into evidence. founda asking is tion the witness whether he made the inconsistent statement. (P (1992), 59, 62, v. Ill. eople App. Hallbeck 3d 590 N.E.2d 82.) (1987), citing App. v. People King 157 Ill. 3d time, questioner place, attention must direct the witness its and circumstances of statement and substance in order for the inconsistency opportunity explain witness to have an before prevent of the introduction of extrinsic evidence surprise unfair v. 106 Ill. 2d witness. Bradford 492, 500-01, 478 N.E.2d 1341. witness, There, the State’s Defendant relies on Hallbeck. May early Christopher Lyga, that on morn- testified ing, prosecutor asked he turned over some tombstones. When the him, prosecutor who alone. The was with testified that cross-examined, Lyga and he was questions, asked no further court, then along excused from with other State witnesses. State Lyga’s signed introduced that both he confession and the defendant Hallbeck, May turned over Ill. 61. App. tombstones 3d at conviction, appeal, finding this court reversed defendant’s lay proper the State failed to foundation for admission Lyga’s signed by failing Lyga signed confession to confront with his confession, Hallbeck, a prior App. inconsistent statement. 227 Ill. at 63. Here, distinguishable present al
Hallbeck from the case. though contemptuously ques refused to answer almost all *9 examination, posed by prosecutor during tions the proper his direct foundation was laid for admission of Wakefield’s inconsistent during by statement Weiss to Wakefield’s cross-examination defense counsel: you any you
"DEFENSE Do recall COUNSEL: statements that may given anyone anyone to Chicago have from the Po- either — Department Attorney’s regard lice or from the State’s Officewith shooting 10th, to September of Aaron Ranson on 1990? WAKEFIELD:Yes. you you
DEFENSE gave COUNSEL:Do recall that those state- ments?
WAKEFIELD:Yeah. statements, you give
DEFENSE COUNSEL:When did those sir? WAKEFIELD: 10th. you give
DEFENSE COUNSEL:Who did those to? statements (Phn. spelling.) WAKEFIELD:Detective Weiss or—and McWile. you gave DEFENSE you COUNSEL: Where were when those statements, sir? 51st
WAKEFIELD: and Wentworth. you DEFENSE COUNSEL:How that that to was came 51st and Wentworth? By
WAKEFIELD: arrest.
* * [*] you gave DEFENSE COUNSEL: Is the statement that [sic], McQuire Detectives Weiss was that statement true? WAKEFIELD:No.” redirect, Wakefield, inquired the State of "You said that
spoke to Detectives Weiss and McGuire. You said that answer to gentleman’s questions, you?” responded by that didn’t Wakefield invoking the fifth amendment.
The record shows that Wakefield was asked whether made the statement, i.e., inconsistent the statement to Weiss. at- Wakefield’s remarks, identity of tention was directed to substance of made, they person to whom and the time at which purposes foundation The shows that were made. record unfair element of so as to eliminate the requirement were satisfied given that was record Wakefield shows surprise to Wakefield. any inconsistency between his to every opportunity explain do so. Weiss, and that he declined to testimony and his statement entirety its negate statement instead to Wakefield chose not "no,” to Weiss was stating the statement made unequivocally circumstances, necessary to ask Wake- true. Under the was Mc- field, Weiss, you say you saw Sam your "In did e.g., Donald, magnum, up armed with .357 walk the entire statement South State?” Wakefield testified that untrue. very person that is the record indicates defendant shooting During arguments day on the of the as well as trial.
saw finding, argued for a defense counsel as follows: directed light in the Wakefield in his statement which was—viewed "Mr. State, says he’s in his statement he most favorable to outside the building. my gun go into the He sees client with shots, people He run out. There hears sees to rob nowhere there in that evidence of intent added.) anyone.” (Emphasis Moreover, Investigation LEADS defendant’s Federal Bureau report that defendant used the alias McGuire” in con- reveals "Sam totality nection in this with his arrest in this case. The record fully aware bench trial leads the conclusion that both sides were Davis, "Sam,” Mc- speaking whether the same *10 Donald, McGuire, Thus, immaterial it whether or other name. if in Wakefield was asked at trial he said the name "Sam McDonald” his statement to Detective Weiss. choice, to a record that defendant elected
Offered shows reviewing A trial, by jury. a proceed to a bench rather than trial law, this judge a trial presume court will knows affirmatively presumption only the record shows is rebutted when (1991), contrary. App. 211 Ill. 3d (People v. Buchanan 344.) Here, carefully judge 570 the record that the trial N.E.2d shows objection considered defense counsel’s to introduction Wakefield’s its statement, length application 115—10.1 and explaining at section light issue, overruling objection. In to defense counsel’s record, any is harmless. of this in of the statement error admission assis- he was effective Finally, defendant contends that denied occasion, he during tance of on at least one counsel trial because holding prosecution a De Andre Wakefield. shared cell with witness deprived of his sixth amend- argues that he was therefore Defendant right confidentially attorney. his speak ment with to day The record shows that on the second defense counsel testifying asked that Wakefield barred from because he was forced to his defense with discuss case defendant in front of Wakefield. The trial responded first lockup court that was notified of the situation day, time; previous and at that it ordered defendant and Wake- separated. field be trial objec- court overruled defense counsel’s tion, noting that it was defense counsel’s to choice confer with defen- presence. dant in Wakefield’s motion, post-trial
Defendant then raised this in arguing issue his that he "forced pres- was to have consultations in the immediate motion, ence” Upon denying of Wakefield. his the trial court noted cooperate that Wakefield did not with State at trial and thát de- having prejudiced by fendant was not lockup been housed the same as Wakefield. right
A to explained defendant’s confer with counsel is in Geders 80, (1976), 592, v. United States 425 U.S. 47 L. Ed. 2d 96 S. a. 1330. There, Supreme the United States Court held that a defendant’s right constitutional consult to with counsel was where a violated a court instructed defendant and his counsel discuss anything during overnight about the case court recess. The Court a proceeding concluded this was critical in the time because it during would be night that counsel and client his would confer to map strategy, potentially obtain valuable information the de- from during testimony merely fendant not disclosed his to "discuss with Geders, significance 88, day’s counsel the of the events.” 425 U.S. 599, 47 L. Ed. 2d 96 S. Ct. at
Recently, (1994), v. App. Abrams 260 Ill. argued ability N.E.2d a defendant that his with consult his attorney impermissibly impaired when was unable confer attorney recess, with his in private during a room lunch because of poor holding acoustics cell. This court determined that Geders was not violated a situation such this that rendered client/ attorney less than consultations ideal. This court determined that re- according versible error only obtains to Geders where the trial court actively i.e., prevents seeing attorney, a defendant from where the trial sequestering during court issues an order the defendant recess, thereby specifically preventing conferring counsel from with his client. obligation prove actually
A defendant that he has right (People denied his of consultation. v. Brooks 115 Ill. 2d 336.) case, imposed present In the court no N.E.2d the trial *11 Therefore, prohibition comparable a sequestration order. defen ability counsel dant has failed to that his to consult with establish an "es to be supreme court found actually our impaired, factor Brooks, 115 Ill. 2d this. in such as predicate for relief’ cases sential at 340. 505 N.E.2d herein, judgment of affirm the we all of the reasons set forth For court. the trial
Affirmed.
BRADEN, J., concurs. WOLFSON, dissenting:
JUSTICE 10.1(c)(2)(B) poses a misreading of section majority’s 115— fact-finding process criminal grave danger integrity of the acquired a correct, will have majority If the is officers cases. unjustified purported in the mouths of power put words new eyewitnesses. July 1, prior inconsistent state- nonparty
Until
witness’
impeachment,
only
in a
case
attack
ment was allowed
criminal
believability,
evidence. See
v.
the witness’
not as substantive
Spicer
79 Ill. 2d
That provides: of the statute portion tion 115—10.1. The relevant by cases, "In all a statement made wit- criminal evidence of hearsay if is made rule ness inadmissible (a) testimony at the hear- is with his statement inconsistent ing or
(b) concerning subject is witness cross-examination statement, and
(c) the statement—
(2) narrates, describes, explains or event or condition of knowledge, personal which the witness had (B) acknowledged making under the witness oath hearing or either at the statement prior into in which the admission evidence of trial, hearing, or sought, at a other being or added.) (Emphasis 725 ILCS proceeding.’’ 5/115 —10.1 1992). (West free from the limitations purpose is to break statute 115—10.1 Section placed had inconsistent statements. courts statements fact to a witness’ inconsistent allows the trier of consider witnesses, Turncoat wilful closer time to the issue. made events fear, inspired by completely fact-finding pro- cannot frustrate *12 cess. 10.1(c)(2)(B) operative in "acknowledge.” The word section is 115— "acknowledge” by must witness the words attributed to him the officer,
police unspecified not that he made some statement. Other- wise, says the witness’ statement would be whatever officer is. it majority says "Wakefield’s attention directed to the (276 476.) App.
substance of the remarks ***.” Ill. at 3d No wasn’t. counsel, The entire on subject, by examination conducted defense was: you
"DEFENSE you COUNSEL:Do recall statements that may given anyone anyone Chicago have from the Po- either — Department Attorney’s lice regard or from the State’s Officewith shooting TO, September to the of Aaron on Ranson 1990? WAKEFIELD:Yes. you you gave
DEFENSE COUNSEL:Do recall that those state- ments? Yeah.
WAKEFIELD: statements, you give DEFENSE COUNSEL: did When those sir? September WAKEFIELD: 10th. you
DEFENSE give COUNSEL: those Who did statements to? (Phn. spelling.) WAKEFIELD:Detective Weiss or—and McWile. you you DEFENSE COUNSEL: gave Where when those statements, sir?
WAKEFIELD:51st and Wentworth.
DEFENSE COUNSEL:How was that that came to 51st and Wentworth? By
WAKEFIELD: arrest. * * you gave DEFENSE COUNSEL: Is the statement that to the McQuire [szc], Detectives Weiss and was that statement true? WAKEFIELD:No.” foundation, testify
Based on Detective Weiss was allowed morning Wakefield told her: on the a.m., about 11:30 at the end of and Anton Hamilton were north commonly located at 2320 South State an area sprinklers. refer to as the and Hamilton saw Ranson and Wakefield nearby a sitting talking individual named Sean Holman while, building. bench. After short Ranson and Holman entered later, defendant, About five as Sam minutes whom identified McDonald, toward through the fire lanes codefendants walked handgun. Me- Each of with a the defendants was armed right, pocket. front McDonald magnum a .357 in his
Donald carried building. Shortly stairway of ran the back up and codefendants dumpster. took cover behind thereafter, heard shots and Wakefield on a was, he was told asked where Ranson lying on and saw Ranson gallery. upstairs ran second-floor a bullet wound. a result of floor, bleeding from the head as uttering single word acknowledged Wakefield, had Yet, the of his statement. account contained Detective Weiss’ defendant by judge to connect the was used error, by "marked plain It be harmless error. crime. That cannot specific objec- unfairness,” for a obviating the need more fundamental (1995), 169 Ill. v. Keene closely balanced case. See tion this imagination picture the mischief It not take much does seriously. if taken majority opinion could cause today’s suspect I author of the statute would disturbed holding. He has written: *13 examination denies that he ever the witness under voir dire
[I]f officer, prior state- made the then his inconsistent statement prosecutor ***. ment could not be used the Because the witness oath, acknowledged require- the had not the statement under (B) Steigmann, met.” Incon- ments of subsection were not R. Prior Illinois, 72 Ill. sistent Statements As Substantive Evidence B.J. (1984). 638, 642
True, he to Detective Wakefield admitted made "statement” way is no to and were talk- Weiss. But there know Wakefield Weiss ing only way to is ask the about the same statement. The find out to did, says If the witness if he said those words to the detective. he may substantive He has "acknowl- statement come evidence. edged” not be needed. It doesn’t the statement. Detective Weiss would says says If matter that he the are untrue. he did not now words words, say become substan- purported the the oral statement cannot evidence, although arguably impeach be introduced to the tive can believability purpose spirit I that is the and the witness. believe 10.1(c)(2)(B). section 115— hairsplitting reading of the urging hypertechnical
I am not statements, hearsay July are to statute. If out-of-court until cases, safeguards against in criminal used as substantive evidence prior inconsistent place. abuse must be in It should be clear that "ac- actually By requiring that the witness oral statement was made. statement, the drafters of knowledge” the words of his or her oral sought integrity of the evidence. statute ensure impeachment requires questioner The traditional foundation 482 time, circumstances, place, direct the witness’ attention prior
substance of the
(1985),
inconsistent
(People
statement.
v. Bradford
1341.)
500,
492,
2d
Ill.
478 N.E.2d
That foundation avoids
surprise
gives
opportunity
explain
unfair
witness
inconsistency.
(1970),
312,
People Henry
v.
47 Ill. 2d
Subsection
Not
further.
must the witness be
if
statement,
asked
he made
prior
oral inconsistent
ac-
must
knowledge
(1991),
298,
that he
v.
People Denny
App.
did.
221 Ill.
3d
302,
839; People
(1991),
581 N.E.2d
App.
v. Posedel
214 Ill.
3d
177,
Professor inspired (Steigmann, whose work the statute 638), agrees: Ill. B.J. at prior acknowledgedby "While oral statements the witness to have during been made her or at current an earlier (c)(2)(B) hearing, proceeding included, or other are also subsection [citations], unacknowledged oral statements are not. Unacknowl- edged likely oral statements are most not to have been made and likely, made, unfairly most if to have been obtained.” See M. Cleary 801.9, Graham & Graham’s Handbook of Illinois Evidence § 1994). (6th ed. Section 115—10.1 "does proper not excuse the need for a founda- prior tion to the admission of an inconsistent (People statement.” v. 971.) Hallbeck App. 227 Ill. 590 N.E.2d requirement foundational importance takes on prior more when the being statement is elevated to level substantive evidence. integrity reliability hearsay should be in doubt. The highest risk of purported prior misuse when the is oral. why higher That is the statute exacts a foundational standard before oral statements can be considered as substantive evidence. Justice Steigmann:
"Accordingly, severely restricting the rules the use of incon impeachment only ought purposes sistent to be statements strictly more To adhered to—not less. do otherwise would reward *14 sloppy investigative practices and would remove the incentive to comply Steigmann, with the new Ill. statute.” 72 B.J. 643. 252, 313-14, In v. Redd Ill. N.E.2d judicially by adding court was asked to amend section 115—10.1 declined, exception catchall hearsay residual rule. court saying: *** prior "If a to be admitted in Illinois inconsistent statement is defendant,
as must against substantive evidence the statement requirements Assembly meet the out in section set the General requirements, prior 115—10.1. If the these statement fails meet isit admissible substantive evidence.” did Wakefield’s Weiss’ about Detective error to It was reversible the statute. requirements not meet respectfully dissent. I admit the evidence. INDUSTRIES, INC., HARDING, Plaintiff-Appellant, v. AMSTED E.
DAVID (Thrall al., Third-Party Plaintiffs-Appellees Car et Defendants Manufacturing Company, Third-Party Defendant-Appellee). (1st Division) District No. 1 — 93—2346
First Opinion filed November