*1 firearm, penalty than years’ imprisonment. carries of no less As such, the armed-violence violates the proportionate-penalties sentence clause. Because statute was void ab initio at the time of sentenc- ing, According Hauschild, defendant’s sentence is void. proper remedy under is to sentencing these circumstances remand for penalty, robbery. offense with the lesser armed subsequent offense, We note to defendant’s commission of legislature amended the in an attempt armed-violence statute to al proportionate-penalties 688, §4, leviate the issue. See Pub. Act eff. (West)). Legis. October Serv. 6228-29 statute, alia, language charge of the new eliminated inter of armed violence person robbery. for a who uses a firearm to commit We also recognize argued viability the issue Hauschild’s has been before the (March 2010). supreme in People No. Kelly, Unless Hauschild, and until our court modifies its decision in we are bound to follow
III. CONCLUSION stated, 15-year For the reasons the trial we vacate court’s sentence sentencing armed-robbery and remand for on defendant’s conviction. vacated; resentencing. Sentence cause remanded for MYERSCOUGH, PJ., McCULLOUGH, J., concur. ILLINOIS, Plaintiff-Appellee, THE PEOPLE THE STATE OF v. LAURIE OF TRACEWSKI, Defendant-Appellant. A.
Fourth District No. 4 — 08—0707 May 13,
Opinion filed STEIGMANN, J., specially concurring. *2 Pelletier, Gary Peterson,
Michael J. Bapst, R. and Lawrence all of State Appellate Office, Springfield, Defender’s appellant. (Patrick Yoder, Attorney,
William A. Bloomington Delfino, State’s Biderman, Robert J. McNeill, and Luke Attorneys Appellate all of State’s Office, counsel), People. Prosecutor’s for the PRESIDING JUSTICE opinion MYERSCOUGH delivered the the court:
Defendant, Traeewski, Laurie A. appeals guilty the trial court’s finding on one count of battery, domestic arguing prior a inconsistent statement from the victim pursuant was not admissible to section (Code) (725 115—10.1 of the Code of Criminal Procedure of 1963 ILCS (West 2008)) and that admission of the 5/115 —10.1 statement violated her sixth-amendment confrontation. affirm. We
I. BACKGROUND 26, 2007, On March charged State defendant with two counts (West 3.2(a)(2) battery domestic ILCS 2006)), in that she 5/12 — knowingly legal justification and without made physical contact of an (count I) insulting provoking nature with Lisa Gipson Lyle (count II). Hudson
A following revealed the May 19, facts. On signed defendant indicating pleading document she was guilty and waiving jury trial. The trial court admonished her as to each giving up. she was Defendant indicated she understood her rights.
A bench trial August 25, was held on Gipson, 2008. Lisa defen- sister, dant’s defendant, testified that on March Gipson, Lyle (Gipson’s Hudson boyfriend) were at 501 East Mulberry, Apart- ment Bloomington, Gipson Illinois. identified in open defendant court but stated she did not recall the events from March because she had drinking However, been for a straight. Gipson month writing signing in State’s exhibit No.
acknowledged “[Defendant] dated March and stated as follows: which was myself. and then hit him and She kicked Lyle kicked Hudson’s door injuries arm.” The shown in State’s exhibits Nos. my me head and arm, injuries leg are and scratch on her left and 3 received the respectively. Gipson stated she did not recall how she defendant. injuries. good relationship stated she has a Gipson had been on Darvocet Gipson On testified she concussion, drinking, and that she supposed for a she was not alleged again incident. She stated she night blacked out on the exhibit No. 1. did recall the statement contained State’s stairs, Gipson being pushed did remember down but bystander’s report say by did not whom. officer, Thornton, Bloomington police spoke testified she
Ivy question. the date in alleged and the two victims on Defendant, all intoxicated. Defendant was Gipson, and Hudson were not as Gipson very cooperative very intoxicated. stated she and Hudson. Officer Thornton intoxicated as defendant again. Stop hitting me say to defendant “Don’t hit heard Hudson doing anything. also stated defendant denied me.” Officer Thornton her knees and arm and red marks on one of Gipson had a cut on her her in that defendant kicked legs. Gipson told Officer Thornton lower *3 Gipson’s wanted to use and cut her arm because defendant the shin photograph exhibit No. 5 was phone got angry. cell State’s leg. Hudson’s officer, he heard a stated that Yamada, Bloomington police
Eric Yamada at the scene. Officer yelling and female when he arrived male filling out the statement Gipson any if had trouble did not recall Gipson voluntarily. fill she did it out exhibit No. 1 but stated State’s Yamada that told Officer Gipson intoxicated. and defendant were in and head. kicked her the arm defendant objection, 5 were admitted without through Nos. 1 State’s exhibits verdict, and the for a directed Defendant moved and the State rested. any evidence. present did not motion. Defendant trial court denied the Gipson’s state- court admitted made. The trial Closing arguments were sec- evidence under 1 as substantive exhibit No. ment made State’s 2008)) (West (725 ILCS the Code tion 115—10.1 of 5/115—10.1 count II. guilty I and not guilty of count found defendant defendant 25, 2008, trial court sentenced August On County jail days in McLean discharge and 90 of conditional months hearing. pending a remission stayed that was appeal followed. This
II. ANALYSIS
appeal,
On
argues
she
denied her
to cross-
examine
Gipson
violation of the confrontation clause under Craw-
Washington,
v.
L. Ed.
2d
Initially, recognize we argument the State’s that defendant forfeited these issues because she did posttrial not file a argu- motion ing them. argue Defendant’s brief did not these issues should be reviewed under plain-error doctrine. below, as discussed the trial court committed admitting no error in Gipson’s written state- ment so there can plain be no error.
“It important to note that in determining whether a out- admissible, of-court statement proponent of the statement first must requirements meet the of the applicable statutory hearsay exception as set out in [through section[s] 115—10 115— (West 10.5 of Code] ILCS [through 10.5] 5/115—10 2002)). holding The should be only considered Crawford the court determines the proffered complies with the requirements applicable People Martinez, statute.” v. (2004). 3d 810 N.E.2d
First, Gipson’s written statement satisfies the requirements section 115—10.1 of the Code. See People Hampton, Ill. App. (2008). Second, 538-39 the trial court’s deci sion to admit as substantive Gipson’s prior evidence statement was not an abuse of discretion. People 66, 87-88, See 128 Ill. 2d (1989).
“Section 115—10.1 of the provides Code for the substantive admis sibility inconsistent statements in criminal cases.” Zurita,
statute reads in part relevant as follows:
“In all criminal evidence of a statement made a witness *4 is not made hearsay inadmissible if rule (a) statement testimony is inconsistent with his at the hear- trial, ing or
(b) the witness is
statement, and
(c) the statement—
(2) describes, condition of narrates, explains or an event or knowledge, personal which the witness had (A) or to have been written proved is the statement witness, or signed (B) making acknowledged under oath the the witness hearing or testimony at the either his the statement prior into evidence of the in which the admission trial trial, hearing, other being sought, or at a statement proceeding!.]*** inconsistent state- render a
Nothing [s]ection in this shall state- impeachment because such purposes ment inadmissible the criteria set fails to meet recorded or otherwise ment was not (West 2008). 725 ILCS forth herein.” 5/115—10.1 testimony Gipson’s trial during shows Here, contained signing the statement acknowledged she of March remember the events 1 but claimed not to State’s exhibit No. straight. On drinking for a month she had been out” because she was she “blacked Gipson testified claimed not drink alcohol. She supposed medication and was writing the statement. to recall requirement the cross-examination determining
“In whether it is has stated that satisfied, supreme court our section 115—10.1 was subject to full testifying as a witness if declarant sufficient ‘the ” Watkins, cross-examination.’ and effective Flores, quoting 538 N.E.2d at of a to a successful cross-examination is not entitled
“A defendant but, rather, underlying his the events witness about cross-examination. for effective merely provided [951,] [554,] 559, U.S. v.] [United States [(1988)]. instance, in witness’s [838,] For deprive a testimony does not his ability recall the basis for effective cross-examination. opportunity for defendant of the 489], 89-90[, quoting 538 N.E.2d at Ill. 2d at witness’s 958, 108 (noting that a at 842 Ed. 2d at S. Ct. 98 L. cross-examination).” goal memory loss is often assertion Watkins, that arguments courts Flores and Watkins
Both the
under section
admitted
improperly
statements were
properly
the trial court
court found
The Flores
of the Code.
10.1
claim
despite
testimony
grand jury
a witness’s
admitted
*5
1165
the
recall
conversation
having
at trial
that he could not
with
87-
of
128 Ill. 2d at
regarding
the death
the victim.
88,
N.E.2d
538
at 488-89.
“
“
”
Watkins,
remember,’
don’t
T
In
answered T
two witnesses
”
“
”
recall,’
every question
T
remember’
to almost
don’t
can’t
Watkins,
929,
at
of them
859
App.
asked
at trial.
368 Ill.
3d
N.E.2d
challenged
The defendant
the
267.
admission
police
grand jury implicating
statements to
and the
the defendant
aggravated
an
on
the
not
battery
allegation
based
the
witnesses were
subject meaningful
of their professed
cross-examination because
memory
Watkins,
App.
loss regarding their
statements.
368 Ill.
argu
3d
859
267.
N.E.2d at
The Watkins court
memory
ment
stated the
“asserted
loss did
deprive
not
defendant of the opportunity for an effective cross-examination.”
Watkins,
Defendant relies on 166 Ill. 520 Yarbrough, 3d proposition N.E.2d 1116 for the she was denied her ef fectively However, Yarbrough cross-examine Gipson. distinguishable is the witness in that case claimed testify not to even remember ing grand before the jury. Yarbrough, App. 3d at N.E.2d at 1120.
Here, bystander’s report the on direct indicates that examination Gipson acknowledged writing and signing the statement but not could the cross-examination, recall events. On Gipson claimed not to recall Further, the import, Yarbrough predates statement. our court’s decision Flores. policies underlying “One of section 115—10.1 protect of the Code is to from wit parties ‘turncoat’ who back away nesses from a former made under circum indicating likely People stances that it was Speed, be true.” (2000). Ill. App. Notably, Gipson defendant’s sister and her statement made shortly Therefore, incident. require written statement satisfies the of section ments 115—10.1. admissible, be a witness’s inconsistent state must only satisfy requirements
ment under section 115—10.1 satisfy but Leonard, also the confrontation clause. confrontation clause amendment requires of the sixth prosecutions, “[i]n all criminal *** enjoy the accused shall wit to be confronted with the Const., nesses him.” amend. “The VI. confrontation guarantees clause an opportunity for effective way, cross-examination that is effective whatever to whatever extent, may defense Hampton, wish.” stated confronta- that the clause is
tion not “violated admission of identification statement unable, loss, testify memory of a witness who is because of basis for identification.” stated 845. The Owens Court further as follows: regarded ‘subject
“Ordinarily witness is as cross-examination’ stand, oath, willingly responds placed when under limita- questions. prohibition, to tions privilege by Just as the constitutional scope the trial court or assertions examination may process undermine the to such a the witness degree meaningful within the intent [rjule by the longer produced no exists. But that effect is not which, earlier, as memory discussed witness’[s] assertion loss— *6 very sought produced often result destroying prior and can the force of the statement.” be effective 561-62, at L. Ed. 2d at 484 U.S. 98 (“Gener Leonard, App. 934, 911 at 411 See also 391 Ill. 3d at N.E.2d subject he is ally, a witness to cross-examination when is considered willingly questions under oath and answers placed on stand him”). opposing party has an to cross-examine Gipson physically appeared at The shows that “There subject defense counsel. trial and was to problems merely the witness’s confrontation[-]clause are no because being him memory problems preclude from cross-examined Leonard, 3d at 934- parties App. have liked.” 391 Ill. extent the would Therefore, written 411. the admission 911 did defendant’s sixth-amendment not violate against confront the witnesses her.
III. CONCLUSION stated, judgment. As we affirm the trial court’s For the reasons statutory its assessment judgment, we award the State part $50 of our of this appeal. defendant as costs Affirmed.
POPE, J., concurs. STEIGMANN, concurring: specially JUSTICE rights were defendant’s confrontation-clause arguing 22-year-old weight Fifth District’s violated, places upon the great but I distinguishes Yarbrough, majority The Yarbrough. decision Instead, Yarbrough was so. do disagree we should 1167 (at implicitly) by been correctly repudiated and has since least decided Thus, repudiate I explicitly several Illinois we should now agree everything majority although I else specially concur opinion holds. that a
Yarbrough
proposition
stands for the
admissible
not be
under section 115—
inconsistent statements would
trial,
if,
he is not
10.1 of the Code when that witness testifies
“subject meaningful
those
cross-examination”
“he cannot remember
statements because the witness claims that
that state
making the out-of-court statement or the substance of
App.
at 1120. The
Yarbrough,
ment.”
166 Ill.
added,
Yarbrough
“Obviously,
cross-
[the]
cannot
of an
respect
falsity
examine a witness with
to the truth or
out-of-
memory.” Yarbrough,
court statement which the witness has no
which were Yarbrough, Fensterer, decided are Delaware v. S. Ct. and United States v. 98 L. Ed. 2d S. Ct. Each of these who, reasons, cases dealt with witnesses for different had significant memory lapses regarding the testimony their *7 they key when testified as the witnesses defendants in those criminal In Fensterer, Supreme cases. the Court rejected the defen- dant’s argument confrontation-clause and “[generally wrote that speaking, guarantees [c]onfrontation [c]lause the an opportunity for effective not cross-examination that is in effective and way, extent, might whatever to whatever the defense wish.” (Emphasis original.) Fensterer, in 474 U.S. 88 L. Ed. 2d at S. In Owens, 106 Ct. at 294. reaffirmed its Supreme holding the Court in Fensterer “[o]rdinarily regarded and wrote that a witness is as ‘subject stand, to placed cross-examination’ when he is under oath, and responds questions.” willingly to 484 U.S.
L. Ed. 2d at
govern
appeared
the
a
“has
for cross-
question
whether witness
the
the
Those
meaning
examination” within
confrontation clause.
are
the
cases
cited
majority,
gap
in
the
court
that
in the
which
wrote
“a
witnesses]
[the]
recollection
the content of
necessarily preclude
cross-
does
effective
Sutton,
examination,”
and
233 Ill. 2d
(2009),
Supreme
op
in
held
“an
which
Illinois
Court
effective
is not denied when
portunity for
introduced,
past
unwilling]
[or
and
unable
to
belief
he is
past
recollect the reason for that
belief.”
Moreover,
earlier, many
Appellate
as stated
decisions
Illinois
holding
analysis Yarbrough
have
and
either
repudiated
Court
recent
explicitly.
silentio or more
One of the most
to do so was
sub
by the
in which the First
Hampton,
majority,
cited
District
upon
defendant’s reliance
Washington,
both Crawford
L.
in his
Yarbrough
Ed. 2d
(2009).) District, as colleagues in the First
Contrary my distinguished case, I my distinguished panelists this believe well as fellow (1) referring Yarbrough “distinguish- as long stop past time (2) Yarbrough's authority “questionable.” noting able” wrongly decided Instead, say Yarbrough what mean: we should we courts) (and that its say not follow To other should merely empow- it attempt distinguish authority is or to questionable case, Yarbrough defendants, in this continue cite like one ers support arguments. of erroneous