PEOPLE v. MELCHOR (2005)

MODIFIED UPON DENIAL OF REHEARING

Following a jury trial, defendant Efren Melchor was found guilty of first degree murder and sentenced to 40 years' imprisonment.   On appeal, defendant contends that:  (1) the admission of a deceased eyewitness' testimony under the former testimony exception to the hearsay rule in section 115-10.4 of the Code of Criminal Procedure (Code) (725 ILCS 5/115-10.4 (West 2002)) violated his confrontation rights pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004);  (2) the admission of the deceased eyewitness' testimony was erroneous because it lacked sufficient guarantees of trustworthiness;  (3) the trial court erred in admitting testimony from a police officer confirming the deceased witness' identification of defendant in a lineup in violation of section 115-12 of the Code (725 ILCS 5/115-12 (West 2002)) and in violation of Crawford;  (4) the trial court denied defendant his right to present a defense by excluding testimony from his brother regarding threats made against his brother and himself;  (5) the trial court erred in admitting gang evidence testimony;  (6) the prosecutor engaged in misconduct in closing argument by suggesting defendant fabricated a defense and in misstating evidence regarding the lineup;  (7) the trial court's 40-year sentence was excessive;  and (8) the trial court failed to properly admonish defendant pursuant to Supreme Court Rule 605(a).   For the reasons set forth below, we reverse defendant's conviction and vacate his sentence and remand.

STATEMENT OF FACTS

On April 30, 1990, Steven Botello was shot to death at 2624 West Fullerton in Chicago.   Defendant and codefendant, Ancermo Paredes, were arrested on May 6 and were identified in a lineup as being involved in the shooting.   Thereafter, both were indicted on two counts of murder.   After being released on bond, defendant failed to appear in court and, on October 2, his bond was forfeited and a warrant for his arrest was issued.   Defendant remained a fugitive for the next 10 years.   On May 15, 1991, codefendant's bench trial began. At this trial, Luis Ortiz, then 16 years old, the sole eyewitness to the shooting testified, implicating both codefendant and defendant.   On May 20, codefendant was found not guilty.   On September 11, 1998, Ortiz died as a result of a drug overdose.   In addition, at some point, codefendant was deported to Mexico.

On October 15, 2000, defendant was again arrested.   Prior to defendant's trial, the State indicated its intent to use Ortiz and codefendant's testimony from codefendant's trial because both were unavailable.   Defendant filed a motion to preclude the State from using their testimony, arguing that its use would violate his confrontation rights and that the testimony, particularly Ortiz's, did not bear sufficient guarantees of trustworthiness.   After a hearing, at which the State confirmed Ortiz was the sole eyewitness to the shooting, the trial court concluded that his testimony was “more probative” on the question of whether or not defendant was present at the scene of the shooting and whether he was the shooter.   The court then noted that while Ortiz's testimony was given under oath at a hearing, there had been no cross-examination by defendant or anyone on his behalf, but only on behalf of codefendant.   Despite this, the court concluded that Ortiz's testimony was trustworthy and there were “equivalent guarantees of trustworthiness” to admit it.   However, the court denied the State's request to use codefendant's prior testimony.

Defendant's jury trial began on March 18, 2003.   Julio Diaz, who was 30 years old at the time of defendant's trial, testified that on April 29, 1990, from approximately 9 p.m. to midnight, he was playing basketball in Haas Park at Fullerton and Washtenaw with Ortiz, Botello, and “Tootie.”   According to Diaz, the group shared a quart of beer.   At approximately 11:30 p.m., the group left the park and was walking down Fullerton to get more beer.   At this time, they saw four Hispanics coming in their direction on the same side of the street, none of whom Diaz recognized.   Tootie said he was going to “mess with” them, to which Diaz responded there was no need for that.   When the Hispanics were near Diaz's group, Tootie made a motion like he was going to hit them in the groin or stomach.   According to Diaz, the Mexicans then crossed the street and started swearing at Diaz's group in Spanish.   Botello said “let's fight,” so Diaz's group, with the exception of Tootie, who ran away, walked across the street.   Diaz further stated that the Mexicans were throwing bottles and bricks at his group, his group ran toward them, and a “free for all” fistfight began.   After approximately 10 minutes, the fight broke up because Botello yelled that the law was coming.   Just prior to this, Jamie Figueroa (also deceased at the time of defendant's trial) and Mario Lopez had joined the fight.

Diaz also testified that he and Figueroa hid in a viaduct for a few minutes after the fight broke up and then went to a pay phone.   At this time, Ortiz and Botello were also there.   The group then walked to Fullerton and California because Botello wanted to see his daughter.   At this intersection, there was a Shell and Amoco gas station on either corner.   Diaz walked toward the Shell station to say hello to someone he knew.   Approximately 10 minutes later, Botello returned.   According to Diaz, as Botello was walking toward the station, Diaz saw a two-door gray Toyota hatchback attempt to hit Botello.   Diaz also saw four individuals in the car and recognized at least one of them as one of the guys his group had been fighting with earlier.¹  His group then started walking eastbound on Fullerton toward “Bunkie's Tavern.”   Diaz saw “Flash,” whom he spoke with for a few minutes, and then he went to the Goethe School playground to tell Flash's girlfriend that Flash was on Fullerton.   While talking to this girl, Diaz heard two sounds like firecrackers.   According to Diaz, he got on a bike and rode toward Fullerton.   He saw a squad car and Botello on the ground.   It was his belief that the cop had hit Botello.   Diaz then rode to the Amoco station, got two hotdogs, and ate one of them.   He got back on the bike and rode eastbound on Fullerton.   Botello was still on the street and, at this time, Diaz found out that Botello had been shot.

Diaz further testified that the guy he recognized in the car whom he had been fighting with was codefendant.   Defense counsel then requested a sidebar, at which time he asked to inquire of Diaz about his gang affiliation.   The court indicated that counsel could ask Diaz only if he was a gang member and, if so, which one.   The State, upon resuming questioning of Diaz, presumably in anticipation of defense counsel's questions, asked him whether he was in a gang, to which he responded in the affirmative, stating he was a member of the Latin Lovers.   Diaz further stated that Ortiz, Botello, Figueroa, Lopez, and Tootie were also in the same gang.   Diaz also stated that he knew the four Mexicans were not in a gang because “you could tell,” and that the fight did not start as a result of gang rivalry, but because Botello opened his mouth.

On cross-examination, Diaz testified that he was fighting with defendant.   He then said he was fighting with the individual shown in a photograph (codefendant), who was the individual he identified in a lineup.   Diaz then again stated he had fought with defendant and, upon viewing him in court, stated defendant looked different now.²  Diaz then admitted that he never observed Botello's shooter.

Christopher Donnelly, the assistant State's Attorney who was responsible for trying codefendant in 1991, read Ortiz's testimony from codefendant's trial.   Ortiz testified that he had been friends with Botello and Diaz for 10 years.   On April 29, 1990, Ortiz was with Botello, Diaz, and Tootie at Harris Park, located at Fullerton and Fairfield, playing basketball.³  Ortiz's testimony regarding the fight and attempted hit-and-run was basically consistent with Diaz's testimony.   Ortiz, too, stated there were four individuals in the car and that he saw the faces of two individuals in the backseat.   Ortiz identified codefendant as one of the individuals he saw and as one of the individuals he had seen earlier that night in the fight.   He further stated that he saw the shooter (however, he did not identify who this was at codefendant's trial), first stating the shooter was in the driver's side rear seat and then stating he was in the front passenger seat.

Ortiz and his group then walked eastbound down Fullerton.   Ortiz first said the group was going to a park and then said, “No,” they were “just gonna walk around.”   According to Ortiz, when the group was in front of “Bonkey's Tavern,” he saw Flash, Wilfredo Hernandez, and Shorty, whom he spoke with.   Ortiz stated that Diaz left on a bike to go to Gaither Park.   Botello also rode off on a bike he got from Shorty because he had left his wallet at the park, heading westbound on Fullerton toward California.   Ortiz observed Botello looking for his wallet, when a little gray car pulled in the parking lot by the park.   Ortiz first stated he did not recognize the car and then stated he did-it was the same car that tried to run Botello over.   According to Ortiz, the passenger side door opened, a guy got out, reached over the roof of the car, and shot Botello.   The guy then got back in the car and it drove off.   Ortiz further testified that on May 6, 1990, he went to Area 5 and viewed a lineup out of which he identified two individuals.   Ortiz stated that he identified the first individual, codefendant, as one of the individuals he had been fighting with and the second individual, defendant, as the shooter, but not someone who had been involved in the fight.   Ortiz further stated that he had first seen these two individuals in the parking lot at the Shell station in the gray Toyota.   Specifically, he stated that codefendant was the backseat passenger and defendant was the front seat passenger.

On cross-examination, Ortiz stated that, with respect to the shooting, he was approximately 100 feet from the car, then stated it was 25 feet, and then 5 feet.   According to Ortiz, codefendant was behind the passenger at the time of the shooting and he denied telling the police codefendant was behind the driver.   Ortiz further stated that he did not observe the driver, but stated the driver was not one of the individuals involved in the fight.

Thereafter, the State presented the testimony of the two detectives involved in defendant's initial arrest.

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

[The following material is nonpublishable under Supreme Court Rule 23].

Detective Reynaldo Guevara testified on behalf of the State that, in May 1990, he received a call, proceeded to a bar located at 2138 North Milwaukee, observed codefendant inside, and arrested him.   After codefendant was taken to the police station, Guevara returned to the bar and arrested defendant.   Guevara stated that he was aware both were wanted for shooting Botello.   Guevara then testified:

“Q. [Assistant State's Attorney]:  You said you had a conversation with Mr. Melchor, is that right?

A. Yes.

Q. Did he tell you he was in a gang?

A. Yes, he did.

Q. What gang is that?

A. Pachuros.

Q. Was Pachuros a street gang back in May 1990?

A. Yes, they were.

Q. You were familiar with them.

A. Yes.

Q. The area of 2701 West Belden [codefendant's address], what gangs hang out in that area?

A. Latin Lovers, Latin Disciples.   Mostly Folks.

Q. What about the area of 3229 West Division where Mr. Melchor lived, were there gangs there?

A. Yes.

Q. What gangs are those?

A. Kings, Unknowns.   You find some Pachuros around there but mainly People.

Q. Were the Latin Lovers welcome in the area of 3229 West Division Street back in May of 1990?

A. No Sir.

Q. They were rivals or enemies at the time?

A. Enemies.

Q. How about the Pachuros and the Latin Lovers, were they rivals or were they enemies?

A. No, they were enemies.”

The court then inquired:  “You've used the word Folks and People * * *.   Could you explain that to the jury?”   Guevara responded:

“A. Sure. Folks and People are two nations.   The Folks are the nation that have gangs within that nation which are Black Gangster Disciples, Latin Lovers, Latin Disciples, Latin Eagles, and so forth. Those are the Folks.   The People are the opposite.   The People are the Latin Kings, the Unknown, Pachuros in there.   They have-a bunch of other gangs in there.   And there [sic ] always against each other.”

On cross-examination, Detective Guevara testified he was acquainted with gang activities and that there had been several shootings between the Latin Lovers and Latin Kings in the vicinity of Fullerton and California due to a gang war going on between the two.   Guevara stated that 2701 West Belden was Folk territory, specifically, the Latin Lovers.

Detective Roland Paulnitsky then testified on behalf of the State. Paulnitsky stated that on May 6, 1990, at approximately 1 a.m., he conducted a lineup composed of four individuals:  defendant, his brother, and two other individuals whose names he could not remember. According to Paulnitsky, Ortiz viewed the lineup and identified defendant as the shooter and codefendant as being in the Toyota.  [The preceding material is nonpublishable under Supreme Court Rule 23].

The preceding portion of this opinion is not published pursuant to Supreme Court Rule 23.

The State then rested.   Defendant moved for a judgment of acquittal, which the trial court denied.   Defendant then offered testimony on his own behalf, including his own testimony.

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

[The following material is nonpublishable under Supreme Court Rule 23].

Nicolas Roman, who was 50 years old, testified on behalf of defendant.   In April 1990, Roman worked at the 95th Restaurant and was the second shift supervisor of dishwashers and kitchen clean up.   Defendant worked for him.   According to Roman, on April 29, defendant started work at approximately 1 to 1:30 p.m. At approximately 10 p.m., Roman and defendant were setting up tables for the next day.   Roman stated that employees were required to punch in and out, including when they took their 30-minute break, but testified that the machine was frequently broken.   Roman further stated that defendant punched out, on April 29, around 10 p.m., but did not leave work until 1 a.m. According to Roman, he, defendant, and Angel Castillo all left work at the same time, proceeding to the basement to change their clothes. Roman did not remember if defendant punched out that night.   When shown defendant's time card from April 29,4 Roman admitted that it did not show that defendant punched out that night.   However, Roman stated that he did not either because the machine was broken.   Roman further testified that on May 6 or 7, he received a telephone call from his boss, Maria Sanchez.   As a result of this call, he checked defendant's time card and showed it to the police.   According to Roman, Sanchez explained to the police how the time card worked.   Roman further stated that defendant worked for him for approximately two years, but they were not social friends.

On cross-examination, Roman stated that when he spoke to the police, they asked him about every day defendant had worked that week and Roman told the police that, on April 29, defendant arrived at approximately 1:30 p.m. and did not leave until 1 a.m. Roman acknowledged that defendant was supposed to get off at 10 p.m., but stayed to help with the set up, which defendant often did.   Roman further acknowledged that defendant's time card for April 29 showed that he punched in at 4 p.m. and punched out at 10:06 p.m., and that he did not punch back in or out.   However, Roman reiterated that this was because the machine was broken and it was not fixed until the next day, which he told the police.   Roman further stated that he found out defendant had been arrested, but never went back to the police to talk to them.   Roman also stated that he had not seen defendant since May 5 or 6.

Renaldo Melchor Santana, defendant's brother, next testified on defendant's behalf.   Renaldo testified that in April 1990, he lived at 3229 West Division in Chicago with defendant, defendant's wife, and defendant's daughter.   The same month, they all moved to 2701 West Belden.   Renaldo further testified that on May 5, he, defendant, and defendant's wife went to a party.   Renaldo left the party before defendant and his wife and went to a bar where he saw codefendant, whom he recognized because they lived in the same building.   Defendant later came to the bar to get Renaldo.   At this time, codefendant was arrested.   According to Renaldo, approximately one-half hour later, he, defendant, and two other individuals were also arrested.   Renaldo and defendant were both placed in a lineup.   Thereafter, Renaldo was allowed to leave the police station, but defendant was not.

Renaldo further testified that on May 22, 2003, he came to the courthouse with defendant's wife and a friend.   According to Renaldo, after defendant's case was finished, “[t]he relatives of the victim told us that we were going to pay for-.”  At this time, the following colloquy occurred:

“MS. BURNETT [Assistant State's Attorney]:  Objection, Judge, to any statement that this witness would be testifying to.   We have been tendered nothing by the Defense regarding any statements, and it's also hearsay.

THE COURT:  I'd sustain the objection.   Do you wish a sidebar?

MR. VILLALOBOS [Defense Attorney]:  Yes.

 * * *

THE COURT:  What are you trying to get in?

MR. VILLALOBOS:  Judge, what I'm trying to get in is that * * * Melchor's family was assaulted out by young men * * *.   It goes to the state of mind why my client left here.   He was also * * * another young man, June 1st, also came up to [Renaldo] * * *.

 * * *

MR. VILLALOBOS:  * * * and put a gun to his head and said are you Melchor's friend and he said, ‘No, it's not me, it's not me, I'm his brother, but I'm not Melchor.’  * * * I think he said-* * * ‘You killed one of our boys, you're gonna pay.’

The rationale for that, Mr. Melchor said that-* * * that was told to him by his brother and that was one of the reasons * * * why he decided I can't come back to the courthouse * * *.   This will explain why he left because they're using flight because he's guilty.  * * *

THE COURT:  I understand, State.

MS. BURNETT:  Judge, counsel filed an affirmative defense of alibi and gave me the name of this witness literally yesterday.  * * * He tendered me nothing regarding any statements.  * * * So I would consider it a discovery violation, number one.   Number two, it doesn't go to affirmative defense of alibi;  and, number three, he can't testify to his brother's state of mind.

MR. MALONEY [Assistant State's Attorney]:  Judge, in addition, anything that somebody told his brother * * * is complete hearsay and not reliable.

 * * *

THE COURT:  Well, the problem we have, though, is because there was no notice to the State, this is going to be it.  * * *

 * * *

THE COURT:  I would sustain the objection at this point.   It's all hearsay.

Your client, if he wishes, may certainly testify that he was fearful because of gangs or he thought were gangs involved and he can say whatever he wishes in that regard as to his own state of mind.   I'd sustain the objection to any further inquiry in that regard.”

Defendant then testified on his own behalf.   Defendant stated that in April and May 1990, he worked at the 95th Restaurant, as well as part-time at a Chinese restaurant, and lived on Belden.   According to defendant, his schedule at the 95th was flexible, but he normally worked from 10 to 10:30 (defendant did not state whether this was a.m. or p.m.) to 1 a.m. He also stated that sometimes he worked from 3 to 11 p.m. He worked as a dishwasher and also set up tables for parties.   Roman was his boss.   Defendant further stated that on April 29, he began work at approximately 1 p.m., which was earlier than normal.   Roman told him there was extra work that night and asked him to stay late.   According to defendant, he left at approximately 12:30 a.m. with Roman, Migueal Guermo, and others;  after changing clothes in the basement, he took two different L trains home, which took approximately 20 to 30 minutes;  he did not remember if he punched out that night;  and he also believed that he took a break around 10 p.m., but did not remember the time for sure and did not remember if he punched out.

Defendant also testified that he knew codefendant because they lived in the same building.   Although he did not generally socialize with codefendant, he did occasionally.   Defendant denied owning a gun or a gray Toyota and stated that he was never in a gray Toyota on April 29 or 30.   When asked if he shot anyone on April 29, defendant replied, “No, I'm not crazy.”   Defendant also denied ever being in a gang.   In this regard, defendant testified as follows:

“Q. Did you ever belong to something known as Pachuros?

A. I don't even know what you are saying.

Q. Have you heard the word Pachuro?

A. Yes, that's a music box.   I have cassettes.”

Defendant confirmed that on May 5, he went with his family to a party and that his brother left first.   Because Renaldo was not home when defendant arrived home, he went to look for him.   Defendant found his brother at a bar.   Defendant testified that at approximately 12:30 a.m., the police arrived and arrested him and his brother.   According to defendant, he did not know what was going on.

Defendant did not remember the date he made bail, but admitted he knew he had to come back to court, but failed to do so.   When defendant was asked why he did not return to court, he testified as follows:

“A. For probably they were accusing me of a murder.   The members who were accusing me were members of a gang.   I have never been a member of the gang.

Q. Did you know the name of the gang of the person who died?

A. No, I didn't know anything.

 * * *

Q. Did you have a conversation with your brother after you were released on bond, did you have any conversation with your brother, Ramondo?

A. Yes.

Q. After you had the conversation with Ramondo-As a result of your conversation with Ramondo what, if anything, did you decide to do?

A. Not to come back because if I would come back they were gonna kill me.   My brother had been threatened.”

Defendant also denied ever going to a Shell gas station on April 29, attempting to run anyone over, or being in any fight on Fullerton.

On cross-examination, defendant stated that he first came to the United States in 1982.   He again admitted he knew that when he made bail, he had to return to court, and admitted signing a statement to that effect.   Defendant acknowledged that he moved often during the period from 1990 to 2000.   He further stated that, during this time, he worked at restaurants and was paid cash and that he twice went to Mexico on vacation and re-entered the United States illegally.   Defendant acknowledged that his time card for April 29 showed that he punched in at 1:07 p.m. and punched out at 10:06 p.m. Defendant further stated that he had had no contact with Roman since he last worked at the 95th.

The preceding portion of this opinion is not published pursuant to Supreme Court Rule 23.

After defendant offered his evidence, the State called the two detectives involved in defendant's initial arrest in rebuttal.

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

[The following material is nonpublishable under Supreme Court Rule 23].

Detective Guevara denied arresting anyone else at the time he arrested defendant.   On cross-examination, Guevara stated that defendant's brother was not arrested and he had no idea how Renaldo ended up in the lineup.

Detective Paulnitsky testified that after defendant was arrested, he received information that defendant had been working on April 29.   Paulnitsky spoke with the restaurant manager, Terry Sheridan.   According to Paulnitsky, he retrieved defendant's time card from Sheridan.   Paulnitsky denied ever speaking with Roman or Sanchez.   Paulnitsky further testified that Renaldo appeared in the lineup voluntarily.   According to Paulnitsky, Renaldo arrived at the police station after defendant was arrested and was used as a filler in the lineup.

The State then gave its closing argument.   During its argument, the State made the following comments:

“Shame on him [defendant] for having to call Mr. Roman up here, 50-year-old hard working guy, a friend of his, who is his friend who is trying to be a nice guy and trying to give him an alibi.   Shame on him for doing that.   Mr. Roman was mistaken.

Why would he remember April 29th of 1990?   It was a Sunday like any other Sunday.  * * *

Mr. Roman never talked to the police.   He is trying to do his buddy a favor.  * * *

 * * *

The defendant is lying.  * * * ”

The preceding portion of this opinion is not published pursuant to Supreme Court Rule 23.

After the State and defendant gave their closing arguments, the case was submitted to the jury.   During the course of its deliberations, the jury sent several notes to the court.   One inquired as to whether Ortiz testified through a translator from Spanish to English.   It was advised that he did not.   The jury also requested to review the transcripts of Detective Guevara, Ortiz, and Diaz's testimony.   With respect to Guevara's testimony, the jury indicated that it wanted to verify whether he had asked defendant if he was a gang member and that defendant's response was yes, he was a member of the Pachuros gang.   The jury was provided with the transcripts of Ortiz and Diaz's testimony, but since Guevara's was not available, it was simply advised that “[t]hat was the testimony of Detective Guevara.”

On March 21, the jury found defendant guilty of murder.   On April 17, defendant filed a motion for a new trial, arguing, inter alia, that the trial court erred in admitting Ortiz's testimony, erred in refusing to allow defendant to impeach Ortiz with a robbery charge that was pending at the time of codefendant's trial, and erred in refusing to allow defendant to impeach Ortiz with a 1994 conviction for armed robbery.   On April 30, during a hearing on defendant's motion, he orally moved to amend the motion to include as an error the trial court's refusal to allow his brother to testify.   The trial court denied defendant's motion for a new trial.   In reaching its decision, the trial court noted that if the only evidence of defendant's guilt had been Ortiz's testimony, the court would have directed a verdict in defendant's favor.   However, according to the court, defendant provided it with additional evidence of his guilt:  his flight and an unsuccessful alibi defense.

The court then held a sentencing hearing and, thereafter, sentenced defendant to 40 years' imprisonment.   On May 14, defendant pled guilty to bail jumping.   He was sentenced to 13 years' imprisonment for that offense, to run consecutive to his sentence for murder.   This appeal followed.

ANALYSIS

Crawford and Section 115-10.4

Defendant first contends that section 115-10.4 of the Code has been rendered unconstitutional pursuant to Crawford since it does not require that a defendant have had a prior opportunity to cross-examine a witness before admitting former testimony.   Defendant argues that Crawford was violated in the instant case by the admission of Ortiz's testimony from codefendant's trial, which denied him his right to confront witnesses.   Defendant also contends that admission of Ortiz's testimony was not harmless error because it contributed to his conviction since Ortiz was the sole eyewitness to identify defendant as the shooter and no other evidence connected him to the crime.   The State contends that defendant forfeited his sixth amendment confrontation claim by his own wrongdoing in intentionally absenting himself from the court and engaging in an elaborate scheme to avoid the law for 10 years.   Section 115-10.4 of the Code, entitled “Admissibility of prior statement when witness is deceased,” provides:

“(a) A statement not specifically covered by any other hearsay exception but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule if the declarant is deceased and if the court determines that:

(1) the statement is offered as evidence of a material fact;  and

(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts;  and

(3) the general purposes of this Section and the interests of justice will best be served by admission of the statement into evidence.

* * *

(c) Unavailability as a witness under this Section is limited to the situation in which the declarant is deceased.

(d) Any prior statement that is sought to be admitted under this Section must have been made by the declarant under oath at a trial, hearing, or other proceeding.”  725 ILCS 5/115-10.4 (West 2002).4

 In Crawford, the Supreme Court “overruled the longstanding reliability framework for the admissibility of out-of-court statements contained in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).”  People v. Thompson, 349 Ill.App.3d 587, 593, 285 Ill.Dec. 696, 812 N.E.2d 516 (2004).   The Crawford Court held that in order to satisfy the confrontation clause of the sixth amendment, testimonial statements of a witness who is not present at a defendant's trial are admissible only if (1) the declarant is unavailable and (2) the defendant had an opportunity to cross-examine the witness at the time of the statement.  Crawford, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203.  Crawford rendered the phrases “ indicia of reliability” and “particularized guarantees of trustworthiness” irrelevant to confrontational clause rights.  Crawford, 541 U.S. at 60, 124 S.Ct. at 1369, 158 L.Ed.2d at 197.   However, the Crawford Court specifically noted that it continued to adhere to the rule that “forfeiture by wrongdoing” can extinguish a defendant's confrontation rights.   Crawford, 541 U.S. at 62, 124 S.Ct. at 1370, 158 L.Ed.2d at 199.   Crawford is applicable to cases pending on direct review at the time of the decision or thereafter.  Thompson, 349 Ill.App.3d at 594, 285 Ill.Dec. 696, 812 N.E.2d 516.

 In the instant case, the admission of Ortiz's testimony from codefendant's trial violated Crawford and, thus, defendant's confrontation rights.   Specifically, there can be no dispute, and the State does not argue to the contrary, that defendant did not have the opportunity to cross-examine Ortiz.   Because of this, Ortiz's testimony was inadmissible at defendant's trial under the dictates of Crawford.   However, Ortiz's testimony would have been properly admitted if defendant forfeited his confrontation challenge by his wrongdoing or the admission was harmless error.

The crucial question here is whether defendant forfeited, by his own misconduct in jumping bail, his confrontational rights with respect to Ortiz, which would deprive him of his right to challenge the admission of Ortiz's testimony.   The determination of this question depends upon adoption and interpretation of the forfeiture by wrongdoing rule.⁵  The forfeiture by wrongdoing doctrine was first enunciated by the United State Supreme Court in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878).   In Reynolds, when police attempted to serve the defendant's second wife with a subpoena to testify against him at his bigamy trial, the defendant refused to reveal her presence.  Reynolds, 98 U.S. at 159, 25 L.Ed. at 248.   The district court concluded that the defendant procured her absence and allowed admission of her testimony from a prior bigamy trial as evidence against the defendant.  Reynolds, 98 U.S. at 158-60, 25 L.Ed. at 247-48.   On appeal, the defendant argued that he was denied his right of confrontation by the admission of his second wife's testimony.   The Court disagreed.   In reaching its conclusion, the Supreme Court relied on language from a 1666 British case, Lord Morley's Case (6 State Trials 770):  the witness was “detained by the means or procurement of the prisoner.”  Reynolds, 98 U.S. at 158, 25 L.Ed. at 247.   The Court further relied on language from another case where evidence was admitted in the witness' absence because “the prisoner had resorted to contrivance to keep a witness out of the way.”  Reynolds, 98 U.S. at 158, 25 L.Ed. at 247.   The Court then noted that other courts had implemented the principle of forfeiture and all had found or implied that “the witness must have been wrongfully kept away.”  Reynolds, 98 U.S. at 159, 25 L.Ed. at 248.   The foundation for the rule, according to the Court, was that “no one shall be permitted to take advantage of his own wrong” and it was based upon “common honesty.”  Reynolds, 98 U.S. at 159, 25 L.Ed. at 248.   In light of these principles, the Supreme Court found:

“The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him;  but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away.   The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts.   It grants him the privilege of being confronted with the witnesses against him;  but if he voluntarily keeps the witnesses away, he cannot insist on his privilege.   If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.”   (Emphasis added.)  Reynolds, 98 U.S. at 158, 25 L.Ed. at 247.

The Court concluded that enough evidence had been proven to place the burden on the defendant to show “that he had not been instrumental in concealing or keeping the witness away” and that he had a “full opportunity [at his trial] to account for the absence of the witness, if he would, or to deny under oath that he had kept her away.”  Reynolds, 98 U.S. at 160, 25 L.Ed. at 248.   However, the defendant failed to do so.   Accordingly, the Court concluded that the defendant, by procuring the witness' absence, could not complain that his constitutional rights had been violated and held that the admission of the testimony was proper.  Reynolds, 98 U.S. at 160, 25 L.Ed. at 248.

By the 1970s, federal courts of appeal had begun to adopt the doctrine, including the 2nd, 5th, 6th, 8th, 10th, and 11th Circuits.   See Commonwealth v. Edwards, 444 Mass. 526, 533, 830 N.E.2d 158, 166 (2005) (citing cases).   Because the forfeiture by wrongdoing rule had become so well-accepted, in 1997, it was codified in Federal Rule of Evidence 804(b)(6) (FRE 804(b) (6)).⁶  The rule was promulgated to “attempt to respond to the problem of witness intimidation whereby the criminal defendant [through one means or another] * * * procures the unavailability of the witness at trial and thereby benefits from the wrongdoing by depriving the trier of fact of relevant testimony.”   M. Graham, 3 Handbook of Federal Evidence § 804.6 (5th ed.2001);  United States v. Thompson, 286 F.3d 950, 962 (7th Cir.2002) (the doctrine is based upon equitable principles and “[t]he primary reasoning behind this rule is obvious-to deter criminals from intimidating or ‘taking care of’ potential witnesses against them”);  United States v. Scott, 284 F.3d 758, 763-64 (7th Cir.2002) (same quote as Graham);  Edwards, 444 Mass. at 535, 830 N.E.2d at 168 (the rule serves “to protect witnesses from intimidation, pressure, threats, and even physical harm” “by discouraging untoward behavior toward witnesses by defendants”).   In other words, the rule is based upon public policy to protect “ ‘the integrity of the adversary process by deterring litigants from acting on strong incentives to prevent the testimony of an adverse witness.’  [Citation.]”  Edwards, 444 Mass. at 535, 830 N.E.2d at 168;  People v. Straker, 173 Misc.2d 949, 955, 662 N.Y.S.2d 166, 169 (Sup.Ct.1997) (same).   More specifically, the rule is justified “ ‘by the public policy of reducing the incentive to tamper with witnesses.’   [Citations.]”  Straker, 173 Misc.2d at 955, 662 N.Y.S.2d at 170.   This exception “is essential because it discourages defendants from killing, kidnapping, secreting, terrorizing, blackmailing, or conspiring with critical witnesses so that they become unavailable to testify.”  State v. Hale, 277 Wis.2d 593, 622, 691 N.W.2d 637, 652 (2005) (Prosser, J., concurring).   As stated above, the Court in Crawford specifically noted that it continued to adhere to the forfeiture by wrongdoing doctrine.  Crawford, 541 U.S. at 62, 124 S.Ct. at 1370, 158 L.Ed.2d at 199.

 No Illinois case has adopted FRE 804(b)(6) and, likewise, our independent research has not disclosed any Illinois case that has addressed the forfeiture by wrongdoing rule.   However, based upon the public policy underlying the rule and the fact it has been accepted by every jurisdiction that has considered it, we, too, believe that the forfeiture by wrongdoing rule should be part of Illinois law.   We must therefore define the scope of the doctrine.

Whether certain acts are considered “misconduct” or “wrongdoing” has not generally been an issue because the acts in question have been serious criminal acts such as assault or murder of a witness.   See, e.g., United States v. Garcia-Meza, 403 F.3d 364 (6th Cir.2005);  United States v. Dhinsa, 243 F.3d 635 (2d Cir.2001);  United States v. White, 116 F.3d 903 (D.C.Cir.1997);  United States v. Rouco, 765 F.2d 983 (11th Cir. 1985);  United States v. Mastrangelo, 693 F.2d 269 (2d Cir.1982);  United States v. Houlihan, 92 F.3d 1271 (1st Cir.1996);  Bryant v. Folino, No. Civ. A. 04-9321, 2005 WL 664037 (E.D.Pa. March 21, 2005);  United States v. Rivera, 292 F.Supp.2d 827 (E.D.Va.2003);  United States v. Colon-Miranda, 992 F.Supp. 82 (D.Puerto Rico 1997);  People v. Moore, 117 P.3d 1, 5 (Colo.App.2004);  State v. Henry, 76 Conn.App. 515, 820 A.2d 1076 (2003);  State v. Meeks, 277 Kan. 609, 615-16, 88 P.3d 789, 794-95 (2004);  State v. Fields, 679 N.W.2d 341, 347 (Minn.2004);  Gonzalez v. State, 155 S.W.3d 603, 610-11 (Tex.App.2004) (witnesses murdered).   Moreover, threats, intimidation, and chicanery directed at a witness, as well as “ ‘persuasion and control by a defendant, the wrongful nondisclosure of information, and a defendant's direction to a witness to exercise the fifth amendment privilege’ [citations]” have also been found to constitute wrongdoing sufficient to invoke the doctrine.  State v. Hallum, 606 N.W.2d 351, 355 (Iowa 2000).   See also Scott, 284 F.3d 758;  People v. Pace, 300 A.D.2d 1071, 752 N.Y.S.2d 489 (N.Y.App.Div.2002);  People v. Geraci, 85 N.Y.2d 359, 649 N.E.2d 817, 625 N.Y.S.2d 469 (N.Y.1995) (witnesses threatened).   See also Scott, 284 F.3d at 763-64 (noting that the rule “contemplates application against the use of coercion, undue influence, or pressure to silence testimony”);  Henry, 76 Conn.App. at 532, 820 A.2d at 1086 (“[I]f a witness' silence is procured by the defendant himself, whether by chicanery [citation], by threats [citations], or by actual violence or murder [citation], the defendant cannot assert his confrontation clause rights” to prevent prior testimony from being admitted against him).   Collusion with a witness has also been held to constitute wrongdoing sufficient to invoke the forfeiture by wrongdoing rule.   See Edwards, 444 Mass. at 539, 830 N.E.2d at 170.

 We find, based upon the above cases along with the specific language used by the Reynolds Court, that a defendant must engage in some sort of wrongful conduct vis-a-vis a witness, not merely wrongful conduct in general.   The State has not cited and our independent research has not disclosed any case in which the defendant's conduct was not aimed directly at the witness.   From the cases cited above, the conduct in question was certainly directed at the witnesses.   Moreover, the terms utilized by the Reynolds Court connote conduct in relation to a witness.   The Court used the term procurement.   “Procure” is defined as “to cause a thing to be done;  to instigate;  to contrive, bring about, effect, or cause.   To persuade, induce, prevail upon, or cause a person to do something,” “Procure connotes action and means to cause, * * * bring about, cause to be done.”   Black's Law Dictionary at 1087 (5th Ed.1979).  “Procurer” is defined as “One who prevails upon, induces or persuades a person to do something.”   Black's Law Dictionary at 1087.   Certainly, these definitions intimate some action on the part of a defendant vis-a-vis a witness.   This conclusion is further supported by the rationale underlying the rule itself, as detailed above.   Clearly, the rule is aimed to protect witnesses from improper behavior and conduct by a defendant.   See, e.g., Hallum, 606 N.W.2d at 356 (“the nature of the defendant's conduct is not as important as the effect of that conduct on the witnesses's willingness to testify at trial”).

 The State argues that the forfeiture by wrongdoing doctrine as set forth in FRE 804(b)(6) narrowly defines the rule and requires an element of intent or motive to procure the witness' unavailability, whereas the equitable doctrine espoused by Crawford through its reliance on Reynolds broadly defines the rule and does not require an element of intent or motive.   According to the State, the two doctrines are not interchangeable and we should not impose an intent requirement.   We disagree.   We initially note that it is not clear whether the Court in Reynolds considered the intent or motive of the defendant irrelevant.   Although the Court did not use the term “intent,” a logical inference can be made from its decision that the defendant's motive, at least in part, was relevant, i.e., the defendant did not disclose his second wife's whereabouts or explain her absence because he wanted to keep her away from his trial so she could not testify against him for a second time.   The Court noted that defendant had a full opportunity to explain her absence or deny his involvement in keeping her away from his trial, but failed to do so.   From this, it seems logical to infer that the defendant's motive was, at least in part, relevant.   In any event, even assuming intent or motive was not required by Reynolds, we find that the intent or motive of a defendant in engaging in the conduct he does is relevant to whether the forfeiture by wrongdoing rule is invoked.   There is no question that intent is required under FRE 804(b)(6) and, thus, the federal courts apply the rule to situations where a defendant's purpose is to prevent the witness' testimony.   United States v. Gray, 405 F.3d 227, 242 n. 9 (4th Cir.2005) (stating that Rule 804(b)(6) applies only “to those cases in which the defendant intended, at least in part, to render the declarant unavailable as a witness against him” and, “[a]bsent such intent, Rule 804(b)(6) has no application”).   See also Houlihan, 92 F.3d at 1279;  United States v. Thevis, 665 F.2d 616, 630 (5th Cir.1982);  United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir.1976).

Our research has disclosed that a majority of the state jurisdictions addressing this question require that a defendant have the intent to procure the witness' unavailability or be motivated by the desire to prevent the witness from testifying.   See Henry, 76 Conn.App. at 537-39, 820 A.2d at 1086-89 (relying on Federal Rules of Evidence as incorporating the common law);  State v. Charbonneau, 2003 WL 22232811 7 (Del.Super.2003) (unpublished) ⁸ (citing D.R.E. 804(b)(6), which tracks the federal rule);  Devonshire v. United States, 691 A.2d 165, 168 (D.C.App.1997) (adopting the forfeiture by wrongdoing rule and stating that “[a]ll federal and state courts that have addressed this issue * * * have concluded that when a defendant procures a witness's unavailability for trial with the purpose of preventing the witness from testifying, the defendant waives his rights under the Confrontation Clause to object to the admission of the absent witness's hearsay statements,” citing Reynolds );  Edwards, 444 Mass. at 540, 830 N.E.2d at 170 (requiring a showing that “the defendant acted with the intent to procure the witness's unavailability);  State v. Wright, 701 N.W.2d 802, 815 (Minn.2005) (citing Crawford and noting that Minnesota has consistently applied the forfeiture by wrongdoing rule since at least 1980, but requires proof that the defendant intended to procure the witness' unavailability and that his conduct did, in fact, procure the witness' unavailability);  State v. Alvarez-Lopez, 136 N.M. 309, 98 P.3d 699, 704 (2004) (holding that the State must show that the defendant intended or was motivated in part to procure a witness' unavailability);  State v. Wiggins, Nos. 99 CRS 46567, 46569, 50145, 100006, 2005 WL 857109 (N.C.Sup.Ct. March 18, 2005) (unpublished) (stating that there was no evidence that the defendant's conduct was motivated in whole or in part by a desire to prevent the witness from testifying and, therefore, the forfeiture by wrongdoing rule was not applicable);  State v. Boyes, Nos. 2003CA0050, 2003CA0051, 2004-Ohio-3528, 2004 WL 1486333 (Ohio App. June 21, 2004) (unpublished) (citing state evidence rule, Evid. R. 804(B)(6), that was patterned after FRE 804(b)(6));  Commonwealth v. Santiago, 822 A.2d 716, 729-30 (Pa.Super.2003) (state evidence rule adopted that is the same as FRE 804(b)(6));  State v. Ivy, No. W2003-00786-CCA-R3-DD, 2004 WL 3021146 (Tenn.App. December 30, 2004) (unpublished) (citing Tennessee Rule of Evidence 804(B)(6) that is the same as FRE 804(b)(6)).   Intent can also be inferred to be a requirement in decisions from three other states.  Moore, 117 P.3d at 5 (although not addressing the issue because the defendant killed the witness and thus, made the witness unavailable, the court relied on Connecticut case law);  Hallum, 606 N.W.2d at 358 (the defendant encouraged and influenced his brother into not testifying against the defendant);  Straker, 173 Misc.2d at 957, 662 N.Y.S.2d at 171 (the defendant intimidated and bribed the witness not to testify).   Cf. People v. Ayrhart, 8 Misc.3d 1014(A), 801 N.Y.S.2d 779, 2005 WL 1662045 (Table) (N.Y.Cty.Ct. June 30, 2005) (unpublished) (requiring a showing that the defendant was responsible for the witness' unavailability and that he was motivated by a desire to prevent the witness from giving testimony).

The only state case we have discovered to the contrary is Gonzalez.   The defendant was on trial for capital murder and the State sought to introduce the murder victim/witness' statement to the police regarding the identity of her shooter, which she made prior to her death.  Gonzalez, 155 S.W.3d at 606-07.   The defendant argued that admission of these statements denied him his right to confront witnesses.  Gonzalez, 155 S.W.3d at 605.   The court disagreed, finding that the defendant forfeited his confrontation rights under the forfeiture by wrongdoing doctrine.  Gonzalez, 155 S.W.3d at 610.   The Gonzalez court relied upon Reynolds and a California case, People v. Giles, 19 Cal.Rptr.3d 843, 851 (App.2004) (holding that if the witness cannot testify because the defendant murdered her, then the defendant is deemed to have forfeited his confrontation rights, even though the act he is charged with is the same act that caused the witness' unavailability).  Gonzalez, 155 S.W.3d at 610.   Although the defendant in Gonzalez argued that “a defendant forfeits a Confrontation Clause objection through wrongdoing only when he is charged with or is under investigation for a crime, and wrongfully procures the witness's absence from trial with the intent of preventing the witness from testifying about that crime,” the court disagreed.  Gonzalez, 155 S.W.3d at 610.   The court found that there was no reason why the forfeiture by wrongdoing doctrine should be limited to such cases, relying on Giles.  Gonzalez, 155 S.W.3d at 610.   Specifically, the court held:

“A defendant whose wrongful act renders a witness unavailable for trial benefits from his conduct if he can use the witness's unavailability to exclude otherwise admissible hearsay statements.   This is true whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable.”   Gonzalez, 155 S.W.3d at 611.9

The State also relies on Garcia-Meza (as well as an unpublished case from California) to support its argument that intent/motive is irrelevant to whether the forfeiture by wrongdoing doctrine is applicable.   In Garcia-Meza, the defendant was on trial for murdering his wife.   He objected to the introduction of her hearsay statements to the police that the defendant had beaten her up because she had been talking to an old boyfriend on the ground that such admission would violate his right to confront witnesses.  Garcia-Meza, 403 F.3d at 369.   The court concluded that the defendant had forfeited his right to object to the lack of confrontation because his wrongful conduct was responsible for her unavailability.  Garcia-Meza, 403 F.3d at 370.   In other words, by killing the witness/his wife, the defendant procured her unavailability.   In rejecting the defendant's argument that the forfeiture by wrongdoing doctrine was not applicable because he did not kill his wife with the specific intent to prevent her from testifying, the court stated:

“Though the Federal Rules of Evidence may contain such a requirement * * *, the right secured by the Sixth Amendment does not depend on, in the recent words of the Supreme Court, ‘the vagaries of the Rules of Evidence.’  [Citation.]  The Supreme Court's recent affirmation of the ‘essentially equitable grounds' for the rule of forfeiture strongly suggests that the rule's applicability does not hinge on the wrongdoer's motive.”   Garcia-Meza, 403 F.3d at 370.

The Garcia-Meza court relied upon United States v. Cromer, 389 F.3d 662 (6th Cir.2004), where the court held that “if * * * the witness is only unavailable to testify because the defendant has killed or intimidated her, then the defendant has forfeited his right to confront that witness.”   Cromer, 389 F.3d at 679.   See also United States v. Mayhew, 380 F.Supp.2d 961, 966-67 (S.D.Ohio 2005) (relying on Garcia-Meza and finding that because the defendant killed the witness, even absent an intent to prevent her from testifying, he had forfeited his right to confront the witness).

We do not find these cases controlling.   The situation presented in each of them is unique:  a defendant is on trial for murder of the actual witness whose out-of-court testimony the prosecution wishes to present and the defendants have argued that the forfeiture by wrongdoing doctrine only applies when a defendant is charged or is under investigation for a crime, and wrongfully procures a witness' absence from trial with the intent of preventing testimony about that crime.   Clearly, in these situations a defendant should not be allowed to escape the forfeiture by wrongdoing based on his or her motive in killing the victim.   Such a rule is certainly logical;  otherwise, defendants would be able to profit from their own wrongdoing.  “ ‘[W]hen confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived’ [Citation.]”   Devonshire, 691 A.2d at 168.   Moreover, this rule has only been applied in the situation described above.   We have discovered no case in which it was applied where the defendant was not on trial for killing the individual whose testimony the prosecution sought to admit.   Accordingly, we do not find that these cases support a general rule that a defendant's intent or motive with respect to his conduct toward a witness is irrelevant in determining whether the forfeiture by wrongdoing rule is applicable.   We find that based upon the prevailing view, in situations other than the unique situation detailed above, the intent or motive of a defendant in engaging in the conduct he does is relevant to whether the forfeiture by wrongdoing rule is invoked.

 Lastly, we find that there must be a causal connection between the defendant's conduct and the witness' unavailability.   Courts have refused to apply the rule when there is no evidence that the defendant was responsible for the loss of the witness or where the State is unable to link the defendant to the witness' unavailability.   See, e.g., Motes v. United States, 178 U.S. 458, 471, 20 S.Ct. 993, 998, 44 L.Ed. 1150, 1155 (1900) (“We are of [the] opinion that the admission in evidence of [the witness'] statement or deposition taken at the examining trial was in violation of the constitutional right of the defendants to be confronted with the witnesses against them.   It did not appear that [the witness] was absent from the trial by the suggestion, procurement, or act of the accused”);  United States v. Hendricks, Crim. No.2004-05 F/R, 2004 WL 1125143 (D.Virgin Islands, St. Croix April 27, 2004) (the forfeiture by wrongdoing rule was not applicable where the government was unable to connect the defendant to the witness' murder);  Giles, 19 Cal.Rptr.3d at 850 (“it is not enough to commit some act that incidentally produces that result [rendered a witness unavailable]”);  Hallum, 606 N.W.2d at 356 (“the nature of the defendant's conduct is not as important as the effect of that conduct on the witnesses's willingness to testify at trial”);  Edwards, 444 Mass. at 540, 830 N.E.2d at 170 (the Commonwealth must demonstrate that the defendant “was involved in, or responsible for, procuring the unavailability of the witness” and here, the evidence demonstrated that the defendant “played a meaningful role in procuring” the witness' unavailability).   See also K. Graham, Accomplice Confessions and the Confrontation Clause:  Crawford v. Washington Confronts Past Issues With a New Rule, 32 Pepp. L.Rev. 315, 361 (2005) (“If a key witness made non-cross-examined hearsay statements that were crucial to convicting the defendant, but the witness suddenly disappeared or died before trial without the prosecution's ability to show that the defendant caused his unavailability, the prosecution is automatically precluded from using the hearsay statements, no matter how reliable they may be”).   In Edwards, the court stated, with respect to a defendant's conduct:

“Certainly, a defendant must have contributed to the witness's unavailability in some significant manner.   However, the causal link necessary between a defendant's actions and a witness's unavailability may be established where (1) a defendant puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure;  (2) a defendant physically prevents a witness from testifying;  or (3) a defendant actively facilitates the carrying out of the witness's independent intent not to testify.”  Edwards, 444 Mass. at 541, 830 N.E.2d at 171.

Thereafter, the court reiterated that

“there must be some causal connection between the defendant's actions and the witness's ultimate unavailability.   The method by which the witness becomes unavailable must, at the very least, be a logical outgrowth or foreseeable result of the collusion.”  Edwards, 444 Mass. at 541, 830 N.E.2d at 171.

In Giles, the court gave the following as an example of when a defendant's conduct, although causing the witness' unavailability, is not sufficient to invoke the forfeiture by wrongdoing rule.   If the witness had died as a result of an automobile accident in which the defendant was the driver, that defendant “would have been the technical cause of [the witness'] unavailability at any future trial, but his actions could not be construed as a forfeiture of his right to confront her as a witness.”  Giles, 19 Cal.Rptr.3d at 850.

 With the above principles we have established in mind, we must determine whether defendant's conduct here falls within the ambit of the forfeiture by wrongdoing rule.   Although the State argues that the forfeiture by wrongdoing exception applies based on defendant's bail jumping and flight, it cites no cases where the rule has been applied in such a situation.   However, with respect to whether “absconding” from prosecution constitutes wrongdoing to invoke the rule, defendant cites a case directly on point in his reply brief, Alvarez-Lopez, although from another jurisdiction.¹⁰  In Alvarez-Lopez, the defendant and his accomplice burglarized a home in April 1993 and were indicted shortly thereafter.  Alvarez-Lopez, 98 P.3d at 702.   The defendant's trial was scheduled for December 1993, at which time the accomplice had pled guilty and was serving his sentence.   The accomplice had been subpoenaed for the defendant's trial.   Alvarez-Lopez, 98 P.3d at 703.   However, the defendant absconded, failing to appear for his trial, and was a fugitive for seven years until July 2000.   Alvarez-Lopez, 98 P.3d at 702.   At the defendant's trial in late 2000, because the accomplice had been deported to Mexico, the statements he had made to the police while in custody that implicated the defendant were admitted against the defendant.  Alvarez-Lopez, 98 P.3d at 702.   Thereafter, the defendant was convicted of, inter alia, aggravated burglary.  Alvarez-Lopez, 98 P.3d at 701.   On appeal, the appellate court concluded that the admission of the accomplice's statement did not violate the defendant's sixth amendment right to confrontation.   Alvarez-Lopez, 98 P.3d at 701.

During the pendency of the Alvarez-Lopez appeal to the New Mexico Supreme Court, Crawford was decided and the parties were required to file supplemental briefs addressing that decision.  Alvarez-Lopez, 98 P.3d at 702.   The State's position was that the defendant forfeited his constitutional right to confront by absconding.  Alvarez-Lopez, 98 P.3d at 702.   The Alvarez-Lopez court held that he did not.  Alvarez-Lopez, 98 P.3d at 702.   Specifically, the court held that “under Crawford [,] the district court erred in admitting into evidence testimonial statements made by an accomplice inculpating Defendant” and the error in doing so was not harmless.   Alvarez-Lopez, 98 P.3d at 702.   In so holding, the Alvarez-Lopez court first recognized that “Rule 804(b)(6) is a federal rule of evidence that has not been adopted into our rules of evidence;  however, we are bound to apply federal law in determining the minimum level of a criminal defendant's constitutional right to confrontation.”  Alvarez-Lopez, 98 P.3d at 704.   In finding that the defendant had not forfeited his right of confrontation by absconding, the court noted that the State's argument was “based on the fact that if Defendant had not absconded, [the accomplice] would have been available to testify at Defendant's trial in 1993.”  Alvarez-Lopez, 98 P.3d at 704.   However, the Alvarez-Lopez court disagreed based on its construction of “causation in light of the language used in the federal rule,” specifically, that a defendant must commit a “ ‘wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.’  [Citation.]”  (Emphasis in original.)  Alvarez-Lopez, 98 P.3d at 704.   According to the Alvarez-Lopez court, the defendant's “absconding did not in any way ‘procure’ [the accomplice's] deportation to Mexico.”   Alvarez-Lopez, 98 P.3d at 704.   Although the court noted that the deportation “may, in some indirect and attenuated sense, have been a consequence of Defendant having absconded, that is not a sufficient causal relationship to satisfy the [forfeiture by wrongdoing] rule.”  Alvarez-Lopez, 98 P.3d at 704.

The Alvarez-Lopez court further concluded that the State failed to show that the defendant “absconded with the specific intent of preventing [the accomplice] from testifying.”  Alvarez-Lopez, 98 P.3d at 705.   Although the court did state that “[i]t may be sufficient to infer under certain facts that a defendant intended by his misconduct to prevent the witness from testifying,” i.e., when a witness is murdered, “we have no basis to infer anything about Defendant's motive in absconding and remaining a fugitive, other than the self-evident fact that he fled from the likely consequences of a successful criminal prosecution.”  Alvarez-Lopez, 98 P.3d at 705.   Lastly, the court noted that “[o]ne of the primary purposes of the forfeiture by wrongdoing rule is ‘to deter criminals from intimidating or “taking care of” potential witnesses' [citation], [but][w]ithout a showing that Defendant intentionally prevented [the accomplice] from being a witness against him, this purpose is not served by admitting the testimony.”  Alvarez-Lopez, 98 P.3d at 705.   Accordingly, the Alvarez-Lopez court held that the State failed to establish the defendant forfeited his right to confront the accomplice.  Alvarez-Lopez, 98 P.3d at 705.

Although the State maintains that Alvarez-Lopez was erroneously decided because the court based its decision on faulty reasoning, i.e., that it was bound by federal laws, presumably FRE 804(b)(6), rather than the equitable doctrine espoused by Reynolds, we disagree for the reasons detailed above, i.e., that intent is relevant to the question of whether the forfeiture by wrongdoing doctrine is applicable.   As such, we find Alvarez-Lopez persuasive and reach the same conclusion here.   Although defendant's flight was reprehensible and showed a complete disrespect for the court and the administration of justice, we do not find it constitutes wrongdoing sufficient to invoke the forfeiture by wrongdoing rule.   First, defendant did not threaten, coerce, pressure, intimidate, persuade or control, collude with, or direct Ortiz to exercise his fifth amendment right, nor did defendant wrongfully nondisclose information regarding Ortiz (Reynolds ).   Clearly, defendant did not engage in any violence with respect to Ortiz.   Although the State argues that the conduct in question here is much worse than the conduct in Reynolds, it ignores there was a direct act by the defendant in Reynolds vis-a-vis the witness.   Specifically, the defendant in Reynolds refused to disclose the location of the witness.   In other words, he engaged in some definite act in connection with or relationship to the witness' ability to be located, and thus, present, that resulted in her absence.   There is no such conduct on the part of defendant here.   Clearly, defendant's conduct was not directed at Ortiz.

Moreover, we find that the requisite intent was not established.   There is no evidence that defendant left or remained a fugitive with the intent to procure Ortiz's unavailability nor that he was motivated by a desire to prevent Ortiz from testifying.   Similarly, there is no evidence, and there can be no logical inference, that defendant remained a fugitive in hopes of Ortiz dying.   This is particularly true given the fact Ortiz was only 16 or 17 years old at the time-not 80 or 90.

Lastly, we find that the requisite causal connection was not established.   Defendant's flight did not procure Ortiz's unavailability to testify.   There is no connection between defendant's flight and Ortiz's death from a drug overdose.   Rather, defendant's conduct was merely an act that incidentally rendered Ortiz unavailable.   Likewise, Ortiz's death from a drug overdose is not a logical outgrowth, foreseeable result, or legitimate consequence of defendant's flight.

Based on the foregoing, we find that the admission of Ortiz's testimony at defendant's trial violated his sixth amendment confrontation rights, as espoused in Crawford, and that defendant's conduct in escaping prosecution for 10 years did not constitute misconduct sufficient to invoke the forfeiture by wrongdoing rule.   Thus, the question becomes whether the admission of Ortiz's testimony was harmless error.   See People v. Miles, 351 Ill.App.3d 857, 867, 286 Ill.Dec. 827, 815 N.E.2d 37 (2004);  Thompson, 349 Ill.App.3d at 594-95, 285 Ill.Dec. 696, 812 N.E.2d 516;  People v. Patterson, 347 Ill.App.3d 1044, 1051, 283 Ill.Dec. 871, 808 N.E.2d 1159 (2004) (all applying a harmless error analysis to alleged violations of Crawford ).

 There are three approaches for determining whether an error was harmless beyond a reasonable doubt:  “(1) focusing on the error to determine whether it might have contributed to the conviction;  (2) examining the other evidence in the case to see if overwhelming evidence supports the conviction;  (3) determining whether the evidence is cumulative or merely duplicates properly admitted evidence.”  Thompson, 349 Ill.App.3d at 594, 285 Ill.Dec. 696, 812 N.E.2d 516.   Here, Ortiz provided testimony establishing defendant as the shooter.   Ortiz was the sole eyewitness to identify defendant as the shooter.   As such, the testimony was not cumulative or duplicative.   Moreover, because it was the only identification testimony, there is a reasonable probability that Ortiz's testimony contributed to defendant's conviction.   See Thompson, 349 Ill.App.3d at 594-95, 285 Ill.Dec. 696, 812 N.E.2d 516.   In addition, the evidence in this case was not overwhelming.   Ortiz was the only individual to connect defendant in any manner to the crime.   There was no physical evidence or other circumstantial evidence (with the exception of Paulnitsky's lineup identification testimony and defendant's flight, both discussed below) connecting defendant to Botello's murder.   Accordingly, we find that the error in admitting Ortiz's testimony into evidence was not harmless beyond a reasonable doubt and we reverse defendant's conviction and remand this cause for a new trial.

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

The following portion of this opinion is non-publishable under Supreme Court Rule 23.

Based on this conclusion, we need not address defendant's argument that the admission of Ortiz's testimony was erroneous because it lacked sufficient guarantees of trustworthiness since this issue has been rendered moot.   However, because other issues raised by defendant are likely to reoccur upon a retrial, we will address them.

Detective Paulnitsky's Lineup Identification Testimony

Defendant contends that the trial court erred in admitting Detective Paulnitsky's testimony that Ortiz identified defendant in a lineup because the admission violated section 115-12 of the Code as well as defendant's right to confront witnesses pursuant to Crawford.   Defendant argues that he was prejudiced by the testimony, which concerned the identification of the shooter, the central issue in the case.

The State contends that defendant forfeited his right to cross-examine Paulnitsky as a result of his own wrongful conduct.   The State further contends that defendant waived review of this issue because he did not object to the testimony and did not raise the issue in his posttrial motion.   The State also maintains that defendant's challenge is not reviewable under the plain error doctrine.   In this regard, the State notes that Illinois now has two different plain error tests, as set forth in People v. Keene, 169 Ill.2d 1, 17, 214 Ill.Dec. 194, 660 N.E.2d 901 (1995) (Illinois' plain error test) and People v. Crespo, 203 Ill.2d 335, 348, 273 Ill.Dec. 241, 788 N.E.2d 1117 (2001) (federal plain error test), and urges us to employ the Crespo standard.   According to the State, no error occurred in this case because Ortiz and Paulnitsky's testimony was admissible since it satisfied the necessary guarantees of trustworthiness and, thus, did not violate section 115-12 of the Code. The State further maintains that defendant did not suffer prejudice and the error, if any, was not one that seriously affected the fairness of the trial.

We reject the State's argument that defendant forfeited his right to cross-examine Ortiz based on his wrongdoing in jumping bail for the reasons set forth above.   With respect to the applicable plain error test, the Illinois Supreme Court has recently resolved this issue.   In People v. Herron, 215 Ill.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005), the State asked the Illinois Supreme Court to adopt the four-part plain error test employed by the federal courts.  Herron, 215 Ill.2d at 170, 294 Ill.Dec. 55, 830 N.E.2d 467.   The Illinois Supreme Court declined to do so (Herron, 215 Ill.2d at 170, 294 Ill.Dec. 55, 830 N.E.2d 467), although noting that both tests “are similar” (Herron, 215 Ill.2d at 183, 294 Ill.Dec. 55, 830 N.E.2d 467).   In reiterating the principles of plain error, the Herron court stated:

“The plain-error doctrine, as it has developed in Illinois, allows a reviewing court to reach a forfeited error affecting substantial rights in two circumstances.   First, where the evidence in a case is so closely balanced that the jury's guilty verdict may have resulted from the error and not the evidence, a reviewing court may consider a forfeited error in order to preclude an argument that an innocent person was wrongly convicted.  [Citations.]  Second, where the error is so serious that the defendant was denied a substantial right, and thus a fair trial, a reviewing court may consider a forfeited error in order to preserve the integrity of the judicial process.”   Herron, 215 Ill.2d at 178-79, 294 Ill.Dec. 55, 830 N.E.2d 467.

More specifically, the court stated:

“We reiterate:  the plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.   In the first instance, the defendant must prove ‘prejudicial error.’   That is, the defendant must show both that there was plain error and that the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him.   The State, of course, can respond by arguing that the evidence was not closely balanced, but rather strongly weighted against the defendant.   In the second instance, the defendant must prove there was plain error and that the error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process.   [Citation.]  Prejudice to the defendant is presumed because of the importance of the right involved, ‘regardless of the strength of the evidence.’  (Emphasis in original.)  [Citation.]”  Herron, 215 Ill.2d at 186-87, 294 Ill.Dec. 55, 830 N.E.2d 467.

Because we believe the improper admission of Paulnitsky's testimony in the instant case would be such a serious error as to deny defendant a fair trial, we review defendant's challenge.

Substantively, we find that the trial court erred in admitting Paulnitsky's testimony regarding Ortiz's lineup identification of defendant both as violative of section 115-12 of the Code and Crawford.   As this is clearly prior identification testimony, its admission is governed by section 115-12.   Under section 115-12, “A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.”   725 ILCS 5/115-12 (West 2002).   All three requirements must be satisfied in order for prior identification testimony to be admissible.  People v. Stackhouse, 354 Ill.App.3d 265, 278, 289 Ill.Dec. 952, 820 N.E.2d 1027 (2004).   However, the harmless error rule is applicable to improper admission of prior identification testimony.  Stackhouse, 354 Ill.App.3d at 281, 289 Ill.Dec. 952, 820 N.E.2d 1027.

Since Ortiz's testimony was not admissible at defendant's trial, he did not testify at defendant's trial and, therefore, the first requirement of section 115-12 was not met.   See, e.g., People v. Doyle, 328 Ill.App.3d 1, 14, 262 Ill.Dec. 259, 765 N.E.2d 85 (2002) (a police officer's testimony that unnamed witnesses identified the defendant at the scene was not admissible under section 115-12 because the witnesses did not testify at the defendant's trial, nor were they subject to cross-examination regarding the identification).   Accordingly, we find that Paulnitsky's testimony was not admissible.   Even assuming Ortiz's former testimony was admissible, the requirements of section 115-12 were not met.   Ortiz was not cross-examined by either codefendant's attorney at codefendant's trial or defendant's attorney here regarding his statement, i.e., his identification of defendant in the lineup.   Thus, the second requirement of section 115-12 was not met.   Since Ortiz was not cross-examined regarding his identification of defendant, Paulnitsky cannot testify regarding the identification.   See People v. Bradley, 336 Ill.App.3d 62, 70, 270 Ill.Dec. 266, 782 N.E.2d 825 (2002) (before a third party can testify regarding a witness' prior identification, the witness must testify and be subject to cross-examination).   See also People v. Armstead, 322 Ill.App.3d 1, 11, 254 Ill.Dec. 973, 748 N.E.2d 691 (2001) (testimony by a third person as to statements made by another nontestifying party identifying the defendant as the perpetrator of a crime constitutes hearsay and is inadmissible).   Since the requirements of section 115-12 of the Code were not met, Paulnitsky's testimony regarding Ortiz's identification of defendant in the lineup was not admissible.   Moreover, because defendant did not have the opportunity to cross-examine Ortiz, his confrontation rights were violated pursuant to the Court's holding in Crawford.   Accordingly, we find that Paulnitsky's testimony would not be admissible upon a retrial of defendant.

Denial of Right to Present Defense

Defendant next contends that the trial court denied him his right to present a defense when it precluded his brother Renaldo from testifying regarding certain threats made to show why defendant jumped bail since the evidence was not hearsay and exclusion was too harsh a discovery violation sanction.   Defendant maintains that exclusion of his brother's testimony was not harmless error because it was critical to his defense, i.e., to rebut the inference of guilt from flight.

The State contends that defendant was able to present his defense himself without limitation since the trial court in no way limited his testimony regarding the threats.   According to the State, any failure to convey the severity of the threats was defendant's own fault.   The State further maintains that defendant's brother's testimony was hearsay and, thus, inadmissible.   With respect to a discovery violation, the State contends that the trial court did not exclude the testimony as a sanction for a discovery violation.   Lastly, the State maintains that if the trial court erred in excluding the testimony, any error was harmless.

“ ‘Flight’ has been defined as the evading of the course of justice by voluntarily withdrawing oneself in order to avoid * * * the * * * continuance of criminal proceedings, and the term signifies not merely a leaving, but a leaving or concealment under a consciousness of guilt.”   P. Coltoff, S. Lease, T. Muskus, 14A Ill. Law & Practice, Criminal Law § 246, at 379 (1999).   See also People v. Autman, 393 Ill. 262, 266, 65 N.E.2d 772 (1946).  “Evidence of flight by the accused is admissible as a circumstance tending to show consciousness of guilt and may be considered by the jury as tending to prove guilt, but must be considered in connection with all the other evidence in the case.”   14A Ill. Law & Practice, Criminal Law § 246, at 374-75.   See also People v. Hart, 214 Ill.2d 490, 518-20, 293 Ill.Dec. 290, 828 N.E.2d 260 (2005).   However, “[f]light does not raise a presumption of guilt.”   14A Ill. Law & Practice, Criminal Law § 246, at 375.   See also People v. Kidd, 410 Ill. 271, 277, 102 N.E.2d 141 (1951).  “An accused has a right to show, by any competent evidence, facts which tend to prove that he or she did not leave the scene of the crime from a consciousness of guilt, but that his or her act in leaving was consistent with his or her innocence.”   14A Ill. Law & Practice, Criminal Law § 246, at 375-76.   See also Autman, 393 Ill. at 267, 65 N.E.2d 772;  People v. Bundy, 295 Ill. 322, 329, 129 N.E. 189 (1920);  People v. Hernandez, 332 Ill.App.3d 343, 348, 265 Ill.Dec. 808, 773 N.E.2d 170 (2002).   “Flight from the scene of a tragedy may be as consistent with innocence as with guilt.   It is not always dictated by impulse or purpose to escape the consequences of acts done or charges that may be made.”  People v. Rappaport, 362 Ill. 462, 468, 200 N.E. 165 (1936).   Accordingly, the Illinois Supreme Court has “adhered to the view that if there are circumstances which would tend to explain or excuse the flight on grounds consistent with innocence, a defendant is entitled to show them.”  People v. Davis, 29 Ill.2d 127, 131, 193 N.E.2d 841 (1963).  “If the flight is unexplained, it may permit an inference of guilt, but it has no such significance when the conduct of the accused is equally, or more, consistent with some other hypothesis.”   Rappaport, 362 Ill. at 468, 200 N.E. 165.   Specifically, a defendant may “introduce any evidence tending to explain the reason for leaving.”  Bundy, 295 Ill. at 329, 129 N.E. 189.   Stated differently, evidence of a defendant's mental state at the time of flight is competent and proper.  People v. Reppa, 104 Ill.App.3d 1123, 1128, 60 Ill.Dec. 853, 433 N.E.2d 1091 (1982) (finding no prejudice to the defendant by the trial court's refusal to admit certain evidence in connection with his flight where the defendant's own testimony sufficiently acquainted the jury with an explanation of his flight that was compatible with his innocence).

Initially, we note that, as the State argues, the trial court did not exclude Renaldo's testimony as a sanction for a discovery violation.   It is clear from the trial court's ruling, although it did mention a lack of notice to the State, that ultimately the trial court sustained the State's objection on the basis that the testimony was hearsay.   Thus, the question is whether the testimony was hearsay and, therefore, properly excluded.   If Renaldo's testimony was not hearsay, based upon the principles espoused above, defendant was entitled to offer his testimony in connection with his defense of flight.

Hearsay is an out-of-court statement offered to prove the truth of the matter contained in that statement.  People v. Murdock, 259 Ill.App.3d 1014, 1024, 198 Ill.Dec. 254, 632 N.E.2d 313 (1994).   Where an extra-judicial statement is not offered for its truth, it may be received into evidence.  Murdock, 259 Ill.App.3d at 1024, 198 Ill.Dec. 254, 632 N.E.2d 313.  “If the out-of-court statements are offered to prove the resultant effect of those words on the listener's state of mind, then the speaking of the words is independently relevant regardless of the truth of their content and the statements are admissible as non-hearsay.”  People v. Kline, 90 Ill.App.3d 1008, 1012, 46 Ill.Dec. 419, 414 N.E.2d 141 (1980).   In other words, “when the mere making of the statement is the significant fact, hearsay is not involved.”   M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 801.5, at 634 (8th ed.2004).   Specifically, “a statement made by one person that becomes known to another [and] is offered for the purpose of showing the latter's state of mind as a circumstance under which the latter acted and as bearing upon his conduct” falls outside the category of hearsay.   Cleary & Graham's Handbook of Illinois Evidence § 801.5, at 634.  “A statement is also not hearsay when offered for the purpose of showing that the listener was placed on notice or had knowledge.”   Cleary & Graham's Handbook of Illinois Evidence § 801.5, at 634.

We find that Renaldo's testimony did not constitute hearsay.   The testimony was not offered to prove that Renaldo was actually threatened, but to show that Renaldo relayed this information to defendant who then decided not to return to court.   The evidence certainly has bearing on defendant's state of mind and explains the reason for his flight.   Stated differently, this evidence was probative as to what affected defendant's actions at the time of his flight.   See People v. Wood, 53 Ill.App.3d 987, 990, 11 Ill.Dec. 755, 369 N.E.2d 209 (1977) (finding that the trial court erred in prohibiting the defendants from introducing evidence to explain why they fled the scene, but harmless error based on the overwhelming evidence of their guilt and the fact that it was unlikely flight was a critical factor in the determination of their guilt).   Accordingly, we find that the trial court erred in refusing to admit Renaldo's testimony because it was not hearsay and was relevant to defendant's defense in connection with his flight.

Detective Guevara's Gang Testimony

Defendant next contends that the trial court erred in admitting detailed testimony from Detective Guevara with respect to gang affiliations and rivalries because the testimony was irrelevant since the State conceded the crime was not gang-related.   Defendant further maintains that admission of this testimony was highly prejudicial since it painted him as a player in a gang war and established a motive for killing Botello.   According to defendant, the only purposes for admitting such testimony were to install fear in the jury of the pervasive gang violence that exists in our society and create the impression he was guilty by association.   Defendant also argues that the importance of the evidence was demonstrated by the fact the jury made a request to review Guevara's testimony.   Defendant further maintains that he did not invite this evidence by asking the State's witnesses questions regarding their gang affiliations since the only purposes of his questioning were to attack their credibility by demonstrating bias and to demonstrate he violated his bond conditions because of fear of retaliation from the gang.   According to defendant, Guevara's testimony in no way rebutted either of these purposes.   Defendant requests that we review this issue under the plain error doctrine.

The State contends that defendant waived review of this challenge because he failed to object at trial and did not include it in his posttrial motion.   Substantively, the State contends that the testimony was relevant, defendant suffered no prejudice since the testimony actually benefitted him, and defendant opened the door to such testimony.   According to the State, defense counsel's failure to object to the testimony demonstrates he believed the evidence was beneficial to defendant and laid the groundwork for his closing argument in which he argued that defendant fled because he was threatened and scared.   The State further maintains that the plain error doctrine is not applicable because defendant benefitted from the testimony.

Defendant challenges the following testimony given by Detective Guevara:

“Q. [Assistant State's Attorney]:  You said you had a conversation with Mr. Melchor, is that right?

A. Yes.

Q. Did he tell you he was in a gang?

A. Yes, he did.

Q. What gang is that?

A. Pachuros.

Q. Was Pachuros a street gang back in May 1990?

A. Yes, they were.

Q. You were familiar with them.

A. Yes.

Q. The area of 2701 West Belden [address of codefendant], what gangs hang out in that area?

A. Latin Lovers, Latin Disciples.   Mostly Folks.

Q. What about the area of 3229 West Division where Mr. Melchor lived, were there gangs there?

A. Yes.

Q. What gangs are those?

A. Kings, Unknowns.   You find some Pachuros around there but mainly People.

Q. Were the Latin Lovers welcome in the area of 3229 West Division Street back in May of 1990?

A. No Sir.

Q. They were rivals or enemies at the time?

A. Enemies.

Q. How about the Pachuros and the Latin Lovers, were they rivals or were they enemies?

A. No, they were enemies.”

Defendant also challenges Guevara's response to the trial court's questioning, “You've used the word Folks and People * * *.   Could you explain that to the jury?”, i.e.:

“A. Sure. Folks and People are two nations.   The Folks are the nation that have gangs within that nation which are Black Gangster Disciples, Latin Lovers, Latin Disciples, Latin Eagles, and so forth. Those are the Folks.   The People are the opposite.   The People are the Latin Kings, the Unknown, Pachuros in there.   They have-a bunch of other gangs in there.   And there [sic ] always against each other.”

The decision to admit gang evidence is within the trial court's discretion and we will reverse that decision only if the trial court clearly abused its discretion, resulting in manifest prejudice to the defendant.  People v. Tolliver, 347 Ill.App.3d 203, 222, 282 Ill.Dec. 900, 807 N.E.2d 524 (2004).   Gang evidence is relevant “if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  People v. Johnson, 208 Ill.2d 53, 102, 281 Ill.Dec. 1, 803 N.E.2d 405 (2003).   Specifically, “[e]vidence of gang affiliation, gang history, and gang structure is generally admissible * * *, although it may prejudice defendant, if it is relevant to the crime.”  People v. Cruzado, 299 Ill.App.3d 131, 142, 233 Ill.Dec. 179, 700 N.E.2d 707 (1998).   Likewise, evidence that a defendant is a gang member is admissible if it provides a motive for an otherwise inexplicable act (People v. Smith, 141 Ill.2d 40, 58, 152 Ill.Dec. 218, 565 N.E.2d 900 (1990)) or is relevant to prove common purpose or design (People v. Terry, 312 Ill.App.3d 984, 992, 245 Ill.Dec. 587, 728 N.E.2d 669 (2000)).  “However, such evidence is admissible only where there is sufficient proof that such membership or gang activity is related to the crime charged.”  People v. Joya, 319 Ill.App.3d 370, 375, 253 Ill.Dec. 158, 744 N.E.2d 891 (2001).   Testimony regarding gangs is improper if it is peripheral to the offense at issue.  Tolliver, 347 Ill.App.3d at 222, 282 Ill.Dec. 900, 807 N.E.2d 524.

In the instant case, defendant did not object to Guevara's testimony at trial, nor did he include it in his posttrial motion, as he concedes by asking us to review this challenge under the plain error doctrine.   Because an error in the improper admission of gang evidence would be a serious error, we review defendant's challenge under the plain error doctrine.

Initially, we note that although both parties state that defendant inquired of the State's witnesses with respect to their gang affiliation, this is untrue.   The only witness questioned with respect to gang affiliation was Diaz. In this regard, during the State's questioning of Diaz, defendant requested a sidebar, at which time defense counsel asked the court to allow him to ask Diaz about his gang membership.   The trial court granted defense counsel's request.   Upon resumption of questioning, the State asked Diaz whether he was a member of a gang.   Diaz responded in the affirmative, as well as stating that Ortiz, Botello, Figueroa, Lopez, and Tootie were fellow gang members.   As such, defendant could not have invited or opened the door for additional questions regarding gang evidence as the State maintains.

It is undisputed that Botello's murder was not gang-related.   As such, gang evidence should not have been admitted.   However, it was proper for the trial court to allow defendant to inquire of the State's witnesses as to their gang affiliation to demonstrate their bias.  People v. Blue, 205 Ill.2d 1, 15, 275 Ill.Dec. 376, 792 N.E.2d 1149 (2001) (holding that the trial court erred in precluding the defendant from cross-examining the State's witnesses regarding their gang affiliation, which error was not harmless because the evidence was relevant to the witnesses' motive to lie).   Also, such evidence was relevant to defendant's defense in connection with his flight.   However, the admission of this evidence does not mean therefore that additional gang evidence was relevant or admissible.   There is no evidence of any connection between defendant's gang membership, if any, and Botello's shooting.   As such, Guevara's testimony of defendant's gang membership and rivalry with Botello's gang was irrelevant.   Specifically, evidence of defendant's alleged gang membership and gang rivalry was not relevant to his motive, nor to any common purpose or design.   The evidence shows that a mere fistfight between youths ultimately led to the shooting-a fight which started because Botello “opened his mouth”-and there was “absolutely no testimony that anyone mentioned gang involvement in the shooting either prior to or after” it.  Joya, 319 Ill.App.3d at 377, 253 Ill.Dec. 158, 744 N.E.2d 891.   In Joya, the court found “that the evidence of gang membership * * * was not related to the crime charged [murder] and that if it had any probative value at all, such value was greatly outweighed by its prejudicial effect.”  Joya, 319 Ill.App.3d at 377, 253 Ill.Dec. 158, 744 N.E.2d 891.   Accordingly, the Joya court concluded that the trial court abused its discretion in admitting evidence of the defendant's gang membership and reversed and remanded the case for a new trial.  Joya, 319 Ill.App.3d at 377, 253 Ill.Dec. 158, 744 N.E.2d 891.   See also Terry, 312 Ill.App.3d at 992, 245 Ill.Dec. 587, 728 N.E.2d 669 (finding reversible error in admitting gang evidence where there was no evidence to demonstrate the shooting was gang-related).   Here, defendant's gang membership and rivalry was simply not relevant to any issue of consequence in the case.   Likewise, whether defendant was a gang member or a rival of Botello's gang was not relevant to the crime since the undisputed evidence showed that the fight and shooting were not gang-related.   Similarly, the evidence does not provide any motive for the shooting.   The only purpose for Guevara's testimony regarding defendant's gang membership and gang rivalry was to inflame the jury and create prejudice against defendant.   Accordingly, we find that the trial court abused its discretion in admitting Guevara's testimony since it was not relevant to any issue in the case.   As such, the testimony would not be admissible upon retrial of defendant.

Misconduct in Closing Argument

Defendant next contends that the State engaged in misconduct in closing argument by suggesting defendant induced a witness, Nicholas Roman, to fabricate an alibi defense for defendant and by misstating evidence to claim that Ortiz identified defendant in the lineup without hesitation.12  With respect to the first challenge, defendant maintains that it was improper for the State, without any evidence, and there was none here, to suggest that defendant fabricated a defense or suborned perjury.

The State contends, with respect to the challenged comment involving Roman, that when read in context, the comment was permissible because it was about the merits of defendant's case.   According to the State, it merely argued that Roman must have been mistaken in his testimony because the time card entered into evidence showed that defendant did not work until 1:30 a.m. The State maintains that it did not accuse defendant of suborning perjury;  it simply argued Roman's bias.   The State further argues that it was one isolated comment and any error was harmless because it did not affect the outcome of the case.

“It is well settled that prosecutors enjoy wide latitude in closing arguments, and the scope of permissible argument rests within the sound discretion of the trial court.   Absent a clear abuse of discretion, the court's determination of the propriety of the argument will stand.”  People v. Owens, No. 1-01-4272, slip op. at 18 (January 20, 2005).   The prosecutor may comment on the evidence and make any reasonable inference based on the evidence presented.  People v. Ellis, 315 Ill.App.3d 1108, 1121, 249 Ill.Dec. 132, 735 N.E.2d 736 (2000).   “Statements in closing argument that defense counsel fabricated a defense, attempted to free his client through trickery or deception, or suborned perjury are improper.”  People v. Slabaugh, 323 Ill.App.3d 723, 729, 257 Ill.Dec. 544, 753 N.E.2d 1170 (2001).   Specifically, “ ‘[i]t is blatantly improper to suggest that the defense is fabricated, as such accusations serve no purpose other than to prejudice the jury.’  [Citation.]”  Slabaugh, 323 Ill.App.3d at 729, 257 Ill.Dec. 544, 753 N.E.2d 1170.  “Any improper comments or remarks made by a prosecutor in closing argument are not reversible error unless they are a material factor in the conviction or cause substantial prejudice to the accused.”   Owens, slip op. at 18.

Defendant objects to the following argument by the State:

“Shame on him for having to call Mr. Roman up here, 50-year-old hard working guy, a friend of his, who is his friend who is trying to be a nice guy and trying to give him an alibi.   Shame on him for doing that.   Mr. Roman was mistaken.

Why would he remember April 29th of 1990?   It was a Sunday like any other Sunday.  * * *

Mr. Roman never talked to the police.   He is trying to do his buddy a favor.  * * * ”

Clearly, defendant did not object at trial nor raise this challenge in his posttrial motion.   Nonetheless, given the other errors committed in this case, we address the issue.   The question of whether these comments were improper is close.   Although the State does not specifically use the terms “lying” or “concocting a defense,” but instead argues Roman was “mistaken,” the inference to be drawn from the comments in context, particularly the State's characterization of Roman and defendant as friends and buddies, which is not supported by the evidence, is that Roman concocted an alibi defense on behalf of defendant.   However, since this was one isolated comment and the jury was instructed that closing argument is not evidence, we find that any error was harmless.

Sentence and Supreme Court Rule 605(a) Admonishments

Defendant also challenges his 40-year sentence and the fact that the trial court failed to properly admonish him pursuant to Supreme Court Rule 605(a).   Because we are reversing defendant's conviction, his sentence therefore is vacated and, thus, these issues are rendered moot.  [The preceding material is nonpublishable under Supreme Court Rule 23].

The preceding portion of this opinion is not published pursuant to Supreme Court Rule 23.

 Since we are remanding this cause for a new trial, we must consider whether the evidence was sufficient to sustain a conviction beyond a reasonable doubt for double jeopardy purposes.   Thompson, 349 Ill.App.3d at 595, 285 Ill.Dec. 696, 812 N.E.2d 516.   The rules with respect to double jeopardy analysis are well-settled.   As stated in People v. Olivera, 164 Ill.2d 382, 207 Ill.Dec. 433, 647 N.E.2d 926 (1995),

“[t]he double jeopardy clause forbids a second, or successive, trial for the purpose of affording the prosecution another opportunity to supply evidence it failed to muster in the first proceeding.  [Citation.]  [F]or purposes of double jeopardy the United States Supreme Court has distinguished between judgments reversing convictions on account of trial error and judgments reversing convictions on account of evidentiary insufficiency.   Reversal for trial error is a determination that the defendant has been convicted by means of a judicial process defective in some fundamental respect, whereas reversal for evidentiary insufficiency occurs when the prosecution has failed to prove its case, and the only proper remedy is a judgment of acquittal.  [Citation.]  Although the double jeopardy clause precludes the State from retrying a defendant after a reviewing court has determined that the evidence introduced at trial was legally insufficient to convict, the double jeopardy clause does not preclude retrial of a defendant whose conviction has been set aside because of an error in the proceedings leading to the conviction.  [Citation.]  Moreover, retrial is permitted even though evidence is insufficient to sustain a verdict once erroneously admitted evidence has been discounted, and for purposes of double jeopardy all evidence submitted at the original trial may be considered when determining the sufficiency of the evidence.”  Olivera, 164 Ill.2d at 393, 207 Ill.Dec. 433, 647 N.E.2d 926.

Upon careful review of the evidence, we find the evidence presented was sufficient to support defendant's conviction and that a rational trier of fact could have found the essential elements of murder beyond a reasonable doubt.  Thompson, 349 Ill.App.3d at 595, 285 Ill.Dec. 696, 812 N.E.2d 516.   However, we note that we make no determination as to defendant's guilt or innocence that would be binding upon retrial, only that the evidence was sufficient to support defendant's conviction and retrial is not barred on double jeopardy grounds.

CONCLUSION

For the reasons stated, we reverse defendant's conviction and vacate his sentence, and remand this cause for a new trial.

Reversed and remanded.

FOOTNOTES

1.   Diaz's testimony was not clear as to how many individuals in the car he recognized, as discussed below.

2.   This testimony encompassed five pages of the record and, during the whole of it, the person who Diaz fought with is not clear.

3.   It is presumed Ortiz meant Haas Park;  Fairfield is approximately one-half block west of Washtenaw.

4.   Defendant's time card is not contained in the record.

4.   An amendment to this provision, adding the following language to the end of paragraph (d), “and been subject to cross-examination by the adverse party,” was approved on June 17, 2005, and became effective immediately.   Pub. Act. 94-0053, eff. June 17, 2005.

5.   We note, as the State indicates, that a case is currently pending before the Illinois Supreme Court that is expected to address the forfeiture by wrongdoing doctrine in relation to Crawford.  People v. Stechly, No. 97544 (2005).   This case was oralled before the supreme court on September 13 and, as of November 3, is on the advisement docket.

6.   Federal Rule of Evidence 804(b)(6) provides as admissible as evidence:  “A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.”  FRE 804(b)(6).   Our independent research has disclosed no case in Illinois that has adopted this provision.

FN7. This case, as reported on Westlaw, has no docket or court number..  FN7. This case, as reported on Westlaw, has no docket or court number.

8.   While we acknowledge that unpublished decisions are not precedential and generally should not be cited, we have, however, included them by way of example and for indicating the diversity within jurisdictions.

9.   Gonzalez has not subsequently been cited or relied upon for this proposition.

10.   Our independent research has disclosed no other cases addressing the precise question of whether flight constitutes wrongdoing for purposes of the forfeiture by wrongdoing rule.

12.   This latter comment clearly could not be made upon a retrial of defendant since Ortiz and Paulnitsky's testimony would be inadmissible.   As such, we need not address this challenge.

Presiding Justice BURKE delivered the opinion of the court: