THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. KEVIN RICE, Appellee.
No. 75689
Supreme Court of Illinois
Opinion filed April 20, 1995.
Rehearing denied May 30, 1995.
Judgment affirmed.
Roland W. Burris, Attorney General, of Springfield, and Jack O‘Malley, State‘s Attorney, of Chicago (Terence M. Madsen and Arleen C. Anderson, Assistant Attorneys General, of Chicago, and Renee Goldfarb, Susan R. Schierl, Jon J. Walters and Theodore Fotios Burtzos, Assistant State‘s Attorneys, of counsel), for the People.
Frederick F. Cohn and Patrick A. Tuite, both of Chicago, for appellee.
JUSTICE MILLER delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant, Kevin Rice, was convicted of possession of a controlled substance with intent to deliver (
Facts
The following evidence was adduced at the joint trial of defendant and codefendant, Raymond Pugh. On June 13, 1989, at 8:30 p.m., Chicago police officers Robert Drozd and Michael Cronin were driving in an unmarked police car northbound on Sacramento Avenue in Chicago. The officers were accompanied by Pat Law, an investigator from the Cook County State‘s Attorney‘s office. A Nissan vehicle with tinted windows subsequently passed the unmarked police car. Officer Drozd testified that he believed the vehicle was traveling about 40 miles per hour in a 30-mile-per-hour zone.
The officers followed the vehicle through the intersection of Sacramento Avenue and Madison Street. Officer Cronin then motioned for the driver of the Nissan to pull over. After the driver complied, both officers exited the police car. Officer Drozd approached the passenger side of the Nissan vehicle, while Officer Cronin approached the driver‘s side.
Officer Drozd testified that the passenger window was rolled down. As he approached the vehicle, Officer Drozd, through the open passenger window, observed defendant, the driver of the vehicle, hand codefendant a brown paper bag, which codefendant tucked inside his pants. Codefendant, who was seated in the passenger seat, then exited the vehicle. Believing the bag to contain a weapon, Officer Drozd conducted a patdown search of codefendant and recovered the bag from codefendant‘s pants. The bag contained a white, chunky
While the preceding events were occurring, Officer Cronin was with defendant, who had stepped out of the car on the driver‘s side. Officer Drozd informed Officer Cronin that he had observed defendant hand the paper bag to codefendant. Officer Cronin then placed defendant under arrest.
After the State rested its case, defendant‘s counsel attempted to call codefendant as a witness. Codefendant invoked his fifth amendment privilege against self-incrimination and refused to testify. (
On appeal to the appellate court, defendant argued, among other things, that the trial judge erred in refusing to admit codefendant‘s suppression hearing testimony. The appellate court agreed, finding that codefen-
Discussion
Before this court, the State initially contends that the appellate court improperly adopted
We first consider the State‘s argument that codefendant‘s suppression hearing testimony is not admissible under the former-testimony exception to the hearsay rule. It is well settled that the testimony of a witness at a prior hearing is admissible in evidence at trial where the witness is unavailable and when ample opportunity to cross-examine existed at the prior hearing. (People v. Horton (1976), 65 Ill. 2d 413, 416; People v. Tennant (1976), 65 Ill. 2d 401, 411.) It is the second element which serves as the focal point of the dispute in this case. As this court has stated, determining whether ample opportunity to cross-examine at the prior hearing exists does not lend itself to a per se determination, but must be decided on the circumstances of each case. See Horton, 65 Ill. 2d at 417.
In applying the former testimony exception to testimony elicited at a preliminary hearing, this court
In view of the limited nature of the evidence that may be introduced at a preliminary hearing, this court has stated that whether adequate opportunity to cross-examine existed at a preliminary hearing “may not depend in its entirety on what transpired at that hearing.” (Horton, 65 Ill. 2d at 417.) “Adequate opportunity to cross-examine means an opportunity to effectively cross-examine ***.” (Horton, 65 Ill. 2d at 417.) Merely providing some opportunity to cross-examine at a preliminary hearing does not necessarily establish that the party had an adequate opportunity. (Horton, 65 Ill. 2d at 417.) Because a suppression hearing is even more limited in focus than a preliminary hearing, the reasoning in Horton is equally applicable to the present case.
At the outset, we note that there is no dispute that the State had an opportunity to cross-examine codefendant at the suppression hearing. The key question is whether that opportunity provided a means to effectively cross-examine codefendant. The State argues
For an opportunity to cross-examine to be considered meaningful, and therefore adequate and effective, the motive and focus of the cross-examination at the time of the initial proceeding must be the same or similar to that which guides the cross-examination during the subsequent proceeding. (Cf.
We also reject the argument that codefendant‘s suppression hearing testimony was admissible under the statement-against-penal-interest exception to the hearsay rule. As to this issue, the State initially contends that the appellate court improperly adopted
“A statement which was at the time of its making *** so far tended to subject the declarant to civil or criminal liability, *** that a reasonable person in the declarant‘s position would not have been made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” (
Fed. R. Evid. 804(b)(3) .)
The State maintains that this court, in determining the admissibility of declarations against penal interest, has specifically chosen not to adopt this rule. Rather, the
To reach this conclusion, we first examine the requirements for admission of a statement against penal interest under
Under Chambers, the statement at issue must be against the declarant‘s interest, and the statement must be accompanied by sufficient indicia of reliability to be admitted. (See People v. Cruz (1994), 162 Ill. 2d 314, 342-
Although the parties dispute whether codefendant‘s statement was against his penal interest, we can assume for purposes of this opinion that codefendant‘s statement was against his penal interest and, for a
Defendant maintains that codefendant‘s suppression hearing testimony was trustworthy because it was against codefendant‘s penal interest, was under oath, and was subject to cross-examination. As previously explained, however, the focus and purpose of the State‘s cross-examination of codefendant at the suppression hearing was limited, and thus the State was not able to fully test the testimony‘s reliability. It therefore cannot be said that the fact codefendant was subject to cross-examination assures the testimony‘s reliability. 5 J. Wigmore, Evidence § 1387, at 90 (Chadbourn rev. ed. 1974) (“Unless the issues were then the same as they are when the former statement is offered, the cross-examination would not have been directed to the same material points of investigation, and therefore could not have been an adequate test for exposing inaccuracies and falsehoods” (emphasis in original)).
Moreover, the absence of several other factors further supports our conclusion that codefendant‘s testimony was not sufficiently trustworthy to be admitted. Codefendant‘s testimony was not a spontaneous state-
Conclusion
For the foregoing reasons, we find that the trial court did not abuse its discretion in excluding at trial codefendant‘s suppression hearing testimony. Accordingly, the judgment of the appellate court is reversed. Because of its ruling on the admissibility of codefendant‘s testimony, the appellate court did not address additional arguments raised by defendant. We therefore remand the cause to the appellate court for consideration of the remaining issues.
Appellate court reversed; cause remanded.
JUSTICE HARRISON, dissenting:
I agree with the appellate court that the admission made by Pugh at the suppression hearing was admissible at trial. Generally, a third party‘s extrajudicial declarations, not made under oath, that he committed a crime are purely hearsay and are inadmissible, even though they are declarations against interest. (People v. Tate (1981), 87 Ill. 2d 134, 143.) When justice requires,
Under Chambers, the availability of a witness is not an essential element in determining the admissibility of a statement against interest. (See also People v. Morris (1986), 148 Ill. App. 3d 471; M. Graham, Cleary & Graham‘s Handbook of Illinois Evidence § 804.7, at 783 (6th ed. 1994).) The critical inquiry is whether the statement was made under circumstances that ensure its trustworthiness. In Chambers, there were sufficient indicia of trustworthiness in that (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred, (2) the statement was corroborated by other evidence, (3) the statement was self-incriminating and against the declarant‘s interest, and (4) there was an adequate opportunity for cross-examination of the declarant. (Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 312, 93 S. Ct. at 1048-49.) We have held, however, that these four indicia are not requirements of admissibility. Accordingly, they need not all be present in order for a declaration to be admissible. The question to be considered in judging the admissibility of a declaration is simply whether the declaration was made under circumstances that provide “considerable assurance” of its reliability by objective indicia of trustworthiness. Bowel, 111 Ill. 2d at 67.
Two of the factors enumerated in Chambers are present here. In Chambers, the Supreme Court found that certain confessions were against the declarant‘s penal interest where they were, “in a very real sense self-incriminatory and unquestionably against interest.”
The second factor present here is the State‘s opportunity to cross-examine Pugh. This court held in People v. Horton (1976), 65 Ill. 2d 413, 416, that an ample opportunity to cross-examine must be decided upon by the circumstances in each case. I disagree with the majority‘s conclusion that the State‘s opportunity was not adequate in the case at bar. Pugh was in court under oath, and the State plainly had every chance to question Pugh regarding whether he possessed the heroin in his pants for two hours or, alternatively, whether defendant Rice handed it to him as Officer Drozd approached their automobile.
The State protests that it would have liked to question Pugh regarding the additional issue of his relationship with the defendant, but had no motive to do so at the suppression hearing. I find this contention unpersuasive. Considering the facts of the crime—Pugh and defendant were arrested while driving around together—and the nature of Pugh‘s admission, I believe that the State had every reason to pursue the matter further in order to ascertain why Pugh acted as he did.
An additional indicium of reliability to provide “considerable assurance” of trustworthiness in this case is the fact that the statement was made in a courtroom under oath. These circumstances distinguish this case from the court‘s decisions in People v. Bowel and People v. Tate which applied the same analysis to declarations against penal interest. In neither of those cases were the declarations at issue made under oath or made in a courtroom, as they were here. The codefendant‘s
Although the admission of evidence is within the sound discretion of the trial court and the court‘s ruling should not be reversed absent a clear showing of abuse of that discretion (Bowel, 111 Ill. 2d at 68), I believe that such an abuse occurred in this case. Defendant was denied a fair trial and is entitled to be tried again. I would therefore affirm the judgment of the appellate court.
CHIEF JUSTICE BILANDIC and JUSTICE MCMORROW join in this dissent.