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03/21/96 PEOPLE STATE ILLINOIS v. DEMETRIS THOMAS

March 21, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
DEMETRIS THOMAS, APPELLEE.



The Honorable Justice Harrison delivered the opinion of the court:

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

Defendant, Demetris Thomas, was indicted in the circuit court of Cook County on two counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 9-1(a)(1), (a)(2)), one count of attempt (first degree murder) (Ill. Rev. Stat. 1991, ch. 38, par. 8-4(a), 9-1(a)(1)), one count of aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2(a)), two counts of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, pars. 12-4(a), (b)(8)), and one count of unlawful use of weapons by a felon (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.1(a)), based on the shooting death of Richard Hillsberg and the wounding of Marcia Samuels. At defendant's bench trial, the trial court granted the State's nolle prosequi motion as to the attempted murder count and directed a verdict for defendant on all remaining counts except the two murder counts. After evidence and arguments were complete, the trial court found defendant not guilty of intentional murder and guilty of second degree murder based upon an unreasonable belief that circumstances existed which would justify the killing (Ill. Rev. Stat. 1991, ch. 38, par. 9-2(a)(2)). Because defendant had two prior Class 2 felony convictions, he was eligible to be sentenced for this Class 1 offense to a Class X term (730 ILCS 5/5-5-3(c)(8) (West 1992)), and the court imposed a sentence of 15 years' imprisonment.

The appellate court affirmed defendant's conviction, but reversed the sentence and remanded for a new sentencing hearing, finding that the trial court erred in using defendant's previous convictions twice to enhance his sentence. 266 Ill. App. 3d 870, 640 N.E.2d 1267, 203 Ill. Dec. 894. We granted the State's petition for leave to appeal (155 Ill. 2d R. 315). In addition, defendant has requested cross-relief (155 Ill. 2d R. 315(g)), arguing that he was denied his right to present a defense when the trial court prohibited the admission of his statement made to the police, and that he was not properly sentenced to a Class X term under section 5--5--3 of the Unified Code of Corrections (the Code) (730 ILCS 5/5--5--3(c)(8) (West 1992)).

Prior to trial, defendant made a motion to suppress the court-reported statement he had made in which he admitted to firing the weapon that killed Richard Hillsberg. Following a hearing, the trial court denied the motion to suppress, finding no violation of defendant's constitutional rights and no evidence to indicate that defendant's statement was made involuntarily.

At trial, the evidence established that Richard Hillsberg and his friends Michael McWherter and Nanette Foreman went to the Bonanza Lounge in Chicago at approximately 1:30 a.m. on February 9, 1991. Defendant was seated at the bar with Marcia Samuels and her friend, Colin, at the time Hillsberg and his friends entered. Shortly thereafter, Hillsberg initiated a confrontation with defendant, who responded by asking if Hillsberg wanted to "take it outside." Hillsberg agreed and he, defendant, McWherter, Foreman and Samuels left the bar.

Marcia Samuels testified that once outside the Bonanza, Nanette Foreman walked toward a car and Samuels did not see her again. The remaining five proceeded to the alley behind the Bonanza. Once in the alley, Samuels and McWherter stood next to each other while defendant and Hillsberg stood some 15 feet away. Samuels stated that she heard defendant ask Hillsberg, "What's up?" and proceed to pull out a gun. Samuels next remembered defendant moving to hit Hillsberg with the gun, and the gun discharging and striking her, causing her to fall to the ground. Samuels testified thatshe then heard two more shots, but did not see how they were fired. Samuels stated that Colin had run away when the shooting began and that, when she looked up after being shot, Hillsberg and McWherter were also gone. Defendant helped Samuels up from the ground and then left the alley. Samuels stated that as she leaned against a garbage can, Hillsberg's car sped past her through the alley. Samuels testified that she knew defendant shot her by accident.

Michael McWherter also testified as to the events that occurred in the alley, stating essentially that defendant deliberately fired at Hillsberg. However, at the time of the incident, McWherter told the police that he had not seen the shooting. The trial court, in its findings of fact, disregarded McWherter's testimony in its entirety because he was repeatedly impeached and gave implausible explanations for his omissions and inconsistent statements.

Dr. Edmund Donoghue testified that he performed an autopsy on the decedent, Richard Hillsberg, which revealed two gunshot wounds, one to the back and the other a frontal wound which had passed through the decedent's arm and entered his chest. Dr. Donoghue also observed several minor injuries to the decedent's face consistent with being struck with a blunt object. Decedent's blood-alcohol level was 0.104, exceeding "the legal limit for driving while intoxicated." Dr. Donoghue testified that the cause of death was multiple gunshot wounds, but that it was not possible to determine in what order the shots entered the decedent's body. Because he found no evidence of close range firing on the body, Dr. Donoghue estimated that the shots were fired from at least 18 inches away.

Vanessa Sanders testified that she lived at the Ainslee Hotel on February 9, 1991, and that at approximately 2 a.m., she and her friend Sylvia Jones saw defendantenter the hotel. Sanders testified that defendant told her he had shot Marcia Samuels. Defendant then asked Jones to braid his hair. Defendant told Sanders that he was in the bar when two men entered, that he got into an argument with one of the men and they agreed to take the argument into the alley. Once in the alley, defendant asked the man "What's up?" pointed his gun toward the man, and "the dude pushed it." Sanders testified that defendant told her he hit the man in the head with the gun and it accidentally went off, striking Samuels.

Sylvia Jones similarly testified to statements defendant made to her at the Ainslee Hotel on the night of the shooting. Defendant told her that he had shot Marcia Samuels "by mistake" and asked her to braid his hair because he was running from the police. Jones testified that defendant said he had gotten into an argument with two "white guys" at the bar and that he went into the alley to fight with one of them. Defendant told her that he pulled out his gun, a "22 automatic," and the man "pushed it." Defendant then stated that he hit the man on the head with the gun and that it went off with the bullet striking Samuels in the leg. Defendant further told Jones that he did not mean to shoot the man and that everything that had happened in the alley was an accident.

Detective Lawrence Halec testified that early on the morning of February 9, 1991, he went to Martha Washington Hospital, where he received a description of the shooter from Marcia Samuels. When he returned to the police station he saw a man fitting that description, identified him as the person he was seeking, and placed him under arrest. Halec stated that he advised defendant of his constitutional rights and that defendant refused to talk to him and denied any participation in the shooting. A short time later, Halec again conversedwith defendant, who then indicated that he had some involvement in the incident. This exchange prompted Halec to place defendant in a lineup, where he was identified by McWherter. On cross-examination, Halec testified that he was present when defendant gave a court-reported statement. The trial court sustained the State's hearsay objection to defendant's attempt to introduce this statement as substantive evidence of what occurred in the alley.

Detective John Santopadre testified that on the evening of February 9, 1991, he Mirandized defendant and then showed him a .22-caliber semiautomatic handgun and a jacket. Defendant identified the weapon as that used in the shooting and stated that he was wearing the jacket at the time. It was stipulated that the two bullets recovered from the decedent were fired from that .22-caliber weapon.

Defendant presented the testimony of two witnesses, Robert Land and Thomas Tepolla. Each stated that, in unrelated encounters, they were attacked and battered by the decedent without provocation. During the defense case, the State again moved to prevent defendant from calling Detective Halec for the purpose of introducing defendant's court-reported statement. After lengthy argument and submission of authority from both sides, the trial court sustained the State's motion, ruling that defendant's statement lacked adequate indicia of reliability to allow its substantive admission. The defense then rested. In finding defendant guilty of second degree murder, the trial court rejected defendant's self-defense argument, noting that the types, placement and number of wounds suffered by the decedent indicated that defendant was "not justified in using that type of force."

We first address defendant's contention that he was denied his sixth amendment right to present a defense, as well as his fourteenth amendment right to due process, because the trial court prohibited the admission of his court-reported statement as substantive evidence. Following a lengthy argument based upon the State's motion to preclude the defense from introducing defendant's statement on hearsay grounds, the trial court found that the statement lacked sufficient indicia of reliability to overrule the hearsay objection and granted the State's motion. On direct appeal, defendant argued that while the trial court had properly examined the statement's "indicia of reliability" to determine its admissibility, it had erred in failing to find the statement sufficiently reliable. Defendant admitted that his statement was inadmissible hearsay, but argued that under the United States Supreme Court's decision in Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), and several more recent Supreme Court decisions ( White v. Illinois, 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992); Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980)), his hearsay evidence was admissible without regard to the availability of the declarant, as long as the evidence bore sufficient indicia of reliability. The appellate court rejected this argument for several reasons. 266 Ill. App. 3d at 874-78. We, however, decline to consider the merits of defendant's argument that Roberts and White have extended Chambers, because we agree with the trial court that defendant's statement lacked sufficient indicia of reliability.

In Chambers, the Court held that "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers, 410 U.S. at 302, 35 L. Ed. 2d at 313, 93 S. Ct. at 1049. Therefore, where the hearsay testimony rejected by the trial court in Chambers bore "persuasive assurances of trustworthiness" and was critical to the accused'sdefense, its exclusion deprived him of a trial in accord with due process. Chambers, 410 U.S. at 302, 35 L. Ed. 2d at 313, 93 S. Ct. at 1049. Chambers established four factors to help determine the reliability of a hearsay statement: (1) the statement was spontaneously made to a close acquaintance shortly after the crime occurred; (2) the statement is corroborated by other evidence; (3) the statement is self-incriminating and against the declarant's interests; and (4) there was adequate opportunity for cross-examination of the declarant. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49. See also People v. Bowel, 111 Ill. 2d 58, 66-67, 94 Ill. Dec. 748, 488 N.E.2d 995 (1986). The presence of all four factors is not a condition of admissibility. Rather, the question to be considered in deciding the admissibility of such an extrajudicial statement is whether it was made under circumstances which provide "considerable assurance" of its reliability by objective indicia of trustworthiness. Bowel, 111 Ill. 2d at 67. In the instant case, defendant's statement was not made under circumstances which provide "considerable assurance" of reliability.

With respect to the first Chambers factor, defendant's court-reported statement was made to the authorities, as opposed to a close acquaintance. See People v. Rice, 166 Ill. 2d 35, 44-45, 209 Ill. Dec. 635, 651 N.E.2d 1083 (1995). With respect to the second factor, defendant's statement is corroborated by other evidence in some respects, including the fact that Hillsberg was intoxicated, was the initial aggressor in their confrontation, was a much larger man than defendant, and that the shooting of Samuels was an accident. However, there is no evidence corroborating that portion of defendant's statement supporting his claims of self-defense or involuntary manslaughter. See Rice, 166 Ill. 2d at 45. Although defendant argues that his oral statement to Sylvia Jones corroborates the fact that the shooting of Hillsberg was "an accident," defendant's court-reported statement contains no such claim. Rather, defendant told the authorities that after the initial shot, he intentionally continued firing the gun.

Defendant's court-reported statement contains the following colloquy:

"MR. LUSTIG [Assistant State's Attorney]: And when you struck [Hillsberg] in the head, ...


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