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04/20/95 PEOPLE STATE ILLINOIS v. KEVIN RICE

April 20, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
KEVIN RICE, APPELLEE.



The Honorable Justice Miller delivered the opinion of the court: Justice Harrison, dissenting: Chief Justice Bilandic and Justice McMORROW join in this dissent.

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Kevin Rice, was convicted of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(1)). He was subsequently sentenced to 20 years' imprisonment. The appellate court reversed defendant's conviction, finding that the trial court erred in refusing to admit into evidence a codefendant's exculpatory testimony made at a pretrial suppression hearing. (247 Ill. App. 3d 415.) We allowed the State's petition for leave to appeal (145 Ill. 2d R. 315(a)) and now reverse the judgment of the appellate court.

Facts

The following evidence was adduced at the joint trial of defendant and codefendant, Raymond Pugh. On June 13, 1989, at 8:30 p.m., Chicago police officers Robert Drozd and Michael Cronin were driving in an unmarked police car northbound on Sacramento Avenue in Chicago. The officers were accompanied by Pat Law, an investigator from the Cook County State's Attorney's office. A Nissan vehicle with tinted windows subsequently passed the unmarked police car. Officer Drozd testified that he believed the vehicle was traveling about 40 miles per hour in a 30-mile-per-hour zone.

The officers followed the vehicle through the intersection of Sacramento Avenue and Madison Street. Officer Cronin then motioned for the driver of the Nissan to pull over. After the driver complied, both officers exited the police car. Officer Drozd approached the passenger side of the Nissan vehicle, while Officer Cronin approached the driver's side.

Officer Drozd testified that the passenger window was rolled down. As he approached the vehicle, Officer Drozd, through the open passenger window, observed defendant, the driver of the vehicle, hand codefendant a brown paper bag, which codefendant tucked inside his pants. Codefendant, who was seated in the passenger seat, then exited the vehicle. Believing the bag to contain a weapon, Officer Drozd conducted a patdown search of codefendant and recovered the bag from codefendant's pants. The bag contained a white, chunky substance, later identified as approximately 103 grams of heroin. Officer Drozd then placed codefendant under arrest.

While the preceding events were occurring, Officer Cronin was with defendant, who had stepped out of the car on the driver's side. Officer Drozd informed Officer Cronin that he had observed defendant hand the paper bag to codefendant. Officer Cronin then placed defendant under arrest.

After the State rested its case, defendant's counsel attempted to call codefendant as a witness. Codefendant invoked his fifth amendment privilege against self-incrimination and refused to testify. (U.S. Const., amend. V; see also Ill. Const. 1970, art. I, ยง 10.) Prior to trial, however, codefendant had testified in a hearing on a motion filed on his behalf to quash arrest and suppress evidence. During the hearing on his suppression motion, codefendant testified that he had placed the paper bag containing the contraband inside his pants about two hours before the police stopped the car. Because codefendant asserted his fifth amendment right to refuse to testify at trial, defense counsel moved to admit into evidence the testimony given by codefendant at the suppression hearing that was exculpatory of defendant. The trial judge ruled that the testimony was inadmissible because the issues at the suppression hearing and at trial were not similar enough to assure that the State had a meaningful opportunity to cross-examine codefendant at the time the testimony was given. Defendant was subsequently convicted of possession of a controlled substance with intent to deliver and was sentenced to a 20-year prison term.

On appeal to the appellate court, defendant argued, among other things, that the trial judge erred in refusing to admit codefendant's suppression hearing testimony. The appellate court agreed, finding that codefendant's testimony was properly admissible under Federal Rule of Evidence 804(b)(3), the statement-against-interest exception to the hearsay rule. Accordingly, the appellate court reversed defendant's conviction and remanded the cause for a new trial. (247 Ill. App. 3d at 417-19.) We allowed the State's petition for leave to appeal (145 Ill. 2d R. 315(a)) and, for the reasons that follow, reverse the judgment of the appellate court.

Discussion

Before this court, the State initially contends that the appellate court improperly adopted Rule 804(b)(3). It further argues that the appellate court erred in finding codefendant's suppression hearing testimony admissible. Specifically, the State contends that codefendant's suppression hearing testimony is inadmissible hearsay and does not fall within the statement-against-interest or the former-testimony exception to the hearsay rule, the two exceptions advanced by defendant in urging the trial court's admission of the testimony.

We first consider the State's argument that codefendant's suppression hearing testimony is not admissible under the former-testimony exception to the hearsay rule. It is well settled that the testimony of a witness at a prior hearing is admissible in evidence at trial where the witness is unavailable and when ample opportunity to cross-examine existed at the prior hearing. ( People v. Horton (1976), 65 Ill. 2d 413, 416, 3 Ill. Dec. 436, 358 N.E.2d 1121; People v. Tennant (1976), 65 Ill. 2d 401, 411, 3 Ill. Dec. 431, 358 N.E.2d 1116.) It is the second element which serves as the focal point of the dispute in this case. As this court has stated, determining whether ample opportunity to cross-examine at the prior hearing exists does not lend itself to a per se determination, but must be decided on the circumstances of each case. See Horton, 65 Ill. 2d at 417.

In applying the former testimony exception to testimony elicited at a preliminary hearing, this court has recognized the distinction between the opportunity to cross-exainine afforded at trial and at a preliminary hearing. "'A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.'" ( Horton, 65 Ill. 2d at 416, quoting Barber v. Page (1968), 390 U.S. 719, 725, 20 L. Ed. 2d 255, 260, 88 S. Ct. 1318, 1322; see also People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 48, 67 Ill. Dec. 790, 445 N.E.2d 270.) Cross-examination at a preliminary hearing is subject to the general rule that questioning may not extend beyond the scope of the direct examination and ...


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