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People v. Bailey

OPINION FILED JANUARY 13, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HANO BAILEY, III, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Adams County; the Hon. RICHARD F. SCHOLZ, JR., Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Defendant appeals the revocation of his sentence to probation. On January 13, 1975, defendant was sentenced to 5 years' probation with the condition that he first serve 15 months of periodic imprisonment. The sentence resulted from his plea of guilty to the offense of indecent liberties with a child. (Ill. Rev. Stat. 1973, ch. 38, par. 11-4(a).) That sentence was affirmed upon appeal to this court.

A petition to revoke probation was filed on December 29, 1976. It alleged that defendant had committed the offense of contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1975, ch. 38, par. 11-5(a)(1)), by having sexual intercourse with Nancy Brown, a child under the age of 18. Defendant was 36 years old.

The trial court, after hearing evidence presented by both sides, found that defendant had committed the offense, and revoked the probation. The trial court sentenced defendant to the penitentiary for a term of 4 to 10 years. Defendant contends that three errors occurred.

First, the trial court is said to have erred in excluding evidence of one Robert Bailey's sworn confession which exculpated the defendant.

The purported confession was clearly hearsay, but the defendant contends that it was admissible as a declaration against Robert Bailey's penal interest. However, Illinois does not fully subscribe to this exception to the hearsay rule. People v. Craven (1973), 54 Ill.2d 419, 299 N.E.2d 1.

In People v. Lettrich (1952), 413 Ill. 172, 108 N.E.2d 488, it was held that a third party declaration against penal interest was admissible, under the facts of that case. Defendant relies on Lettrich and on Chambers v. Mississippi (1973), 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038. In Chambers, evidence of another's repudiated confession, well corroborated, was erroneously excluded and defendant was denied a fair trial.

However, Lettrich recognized the general rule of inadmissibility:

"The rule is sound and should not be departed from except in cases where it is obvious that justice demands a departure." 413 Ill. 172, 178, 108 N.E.2d 488, 492.

• 1, 2 In Craven, the supreme court made it clear that both Lettrich and Chambers stated exceptions to the rule. Before a declaration against penal interest is received there must be some showing of its reliability. See also People v. Hanks (1974), 17 Ill. App.3d 633, 307 N.E.2d 638.

The Chambers court recognized the need for a showing of reliability as well:

"The hearsay statements invoked in this case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability." 410 U.S. 284, 300, 35 L.Ed.2d 297, 311-12, 93 S.Ct. 1038, 1048.

The facts of our case disclose that Robert Bailey was the 16-year-old friend and cousin of defendant. The confession, as it was orally sketched by defense counsel, related that Robert had intercourse with Miss Brown on the night in question and that defendant did not. We can find nothing in the record that would tend to corroborate the facts of the declaration; nothing that bolsters the reliability of the out-of-court statements of defendant's friend. We note that the confession as related by defense counsel was formulated in the conjunctive, and the first part of the conjunctive is against Robert's interest, but that the second is not. This serves to further undermine the reliability of the statement. The record shows that the cause was continued while defense counsel consulted the witness on several occasions concerning his testimony and that defense counsel obtained contradictory accounts from the witness. The latter ultimately refused to testify.

Accordingly, we hold that it was not error to exclude the hearsay statement since there was no ...


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