APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
546 N.E.2d 268, 189 Ill. App. 3d 1011, 137 Ill. Dec. 514 1989.IL.1620
Appeal from the Circuit Court of Livingston County; the Hon. Charles E. Glennon, Judge, presiding.
JUSTICE STEIGMANN delivered the opinion of the court. McCULLOUGH, P.J., and LUND, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STEIGMANN
Following a jury trial, the defendant, Angel T. Sanchez, was convicted of attempt (first degree murder) (Ill. Rev. Stat. 1987, ch. 38, pars. 8-4(a), 9-1(a)(1)) and sentenced to 50 years' imprisonment. On appeal, defendant argues (1) the introduction of and repeated reference to an out-of-court statement made by co-defendant Jose Sanchez denied defendant his right to confront a witness against him, and (2) his 50-year sentence is disproportionate to the 30-year sentence imposed upon the codefendant. We disagree and affirm.
In March 1988, defendant and the co-defendant were charged with attempt (first degree murder). On the day before their joint trial, the codefendant's case was severed because he had entered into a plea agreement with the prosecution. The plea agreement provided that if called as a witness in the defendant's trial, the co-defendant would invoke the fifth amendment in response to any questions. The prosecution then filed a motion in limine seeking to bar the defendant from calling the co-defendant at trial. However, during defendant's trial, the prosecution withdrew from the plea agreement, and the codefendant invoked his fifth amendment right not to testify.
A key witness at trial was Lieutenant Delector Kennedy, a guard at the Pontiac Correctional Center. Kennedy testified that on the day in question, he and the defendant argued several times. During these arguments defendant became hostile and told Kennedy that he was going to wind up just like Superintendent Taylor. Other evidence established that Superintendent Taylor had been killed at the institution the year before. Later that same day, Kennedy noticed the defendant talking near the showers with the codefendant. Kennedy approached them and told them to leave. Defendant refused the order. Kennedy then ordered the defendant to turn around to be handcuffed. The defendant began to turn around, but then struck Kennedy with his fist. The two men began to wrestle when someone began to strike Kennedy in the back. Kennedy said that he did not see a weapon at this time. Kennedy then stated that he grabbed the defendant and began to use the defendant as a shield. It was at this time that Kennedy saw co-defendant Jose Sanchez holding a knife. Kennedy stated that the co-defendant tried to reach around defendant to continue the attack. Finally, the co-defendant stabbed Kennedy in the arm, and defendant began holding Kennedy from behind in a full nelson. Kennedy then heard the co-defendant say, "Mother fucker, we are going to kill you now."
Several others corroborated Kennedy's version of the day's events. Officer Rod Emmons testified that earlier that morning, he heard defendant make threats toward the victim, and that after lunch, he saw defendant stab the victim in the back as the co-defendant held Kennedy. Emmons also testified that he heard the defendant and codefendant speaking to each other in Spanish. Lieutenant Tim Lovell testified that the defendant and co-defendant continued speaking to each other in Spanish even after the fight had been broken up. Lewis Sinclair, an inmate who occupied a cell next to the defendant, testified that on the morning in question defendant had told Kennedy, "I will kick your ass. Quit harassing me."
Defendant testified that he had never threatened Kennedy. Defendant also denied that he stabbed the officer, planned anything with the codefendant, or knew that the co-defendant had a weapon. Defendant did admit, however, that he had punched Kennedy several times and wrestled with him during the incident.
In rebuttal, Lovell testified that on the morning of the incident, he saw defendant put a knife in his waistband. As defendant did so, Lovell heard defendant say that he was "going to take care of his business."
On appeal, defendant argues that the out-of-court statement "We are going to kill you now," which was introduced during trial and emphasized during argument as substantive evidence against the defendant, was a violation of his State and Federal confrontation rights. We disagree.
No violation of defendant's confrontation rights occurred because the codefendant's out-of-court statement was properly received into evidence. There are three separate grounds for the statement's admissibility: (1) it is not hearsay, and (2) even if it were hearsay, it would be admissible (a) under the coconspirator exception to the hearsay rule, and (b) under the declaration of intent exception to the hearsay rule.
"'Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its ...