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June 6, 1996


Appeal from the Circuit Court of Cook County. No. 93-CR-5971. Honorable Thomas F. Dwyer, Judge Presiding.

The Honorable Justice Theis delivered the opinion of the court: Cahill and O'brien, JJ., concur.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

Defendant Miguel Morales (Morales) appeals his conviction for first degree murder. On appeal, defendant argues that: (1) the State's use of a witness' prior inconsistent statements denied defendant a fair trial; (2) the State failed to prove defendant guilty beyond a reasonable doubt; (3) the jury verdict was coerced by the conditions of their deliberations; and (4) the trial court abused its discretion in sentencing defendant to a 45-year term. We affirm.

On February 2, 1993, Hector Olague was shot and killed. At trial, the State presented two eyewitnesses who described the events leading up to the shooting. Raphael Robinson (Robinson) stated that on the afternoon of February 2, 1993, he observed a brown car with three Hispanic males drive by him. Robinson stated that the driver was wearing a black-hooded sweatshirt and the front-seat passenger wearing a Georgetown pullover. The passengers were flashing gang signs to members of a rival gang, the Latin Kings, across the street. The Latin Kings responded with their own gang signs and threw a brick at the car. The car then drove away.

Robinson stated that the same car returned about 10 minutes later. Robinson testified that he saw someone from the car running down the alley. The Latin Kings ran towards the alley. Robinson looked down the alley and saw two of the passengers from the car, defendant and another man. Robinson testified that he saw defendant pull something from his waist. Someone called out Robinson's name and Robinson turned away just as five shots were fired. Robinson dropped to the ground and looked back down the alley. Robinson saw defendant with a gun in his hand.

Shawn Hendricks (Hendricks) also witnessed the incident. Hendricks saw a crowd gather in the parking lot adjacent to the alley. He looked down the alley and saw two Hispanic males; one with a blackhooded sweatshirt and the other with a Georgetown pullover. Hendricks stated that three or four Latin Kings ran after the two males in the alley. Hendricks then testified that he saw defendant step out from a gangway and pull a gun from his waist. Hendricks stated that defendant crouched down low and shot the gun towards the Latin Kings.

Shortly thereafter, the police arrived at the scene. The officers took statements from a number of the people present, including Robinson and Hendricks. On February 10, 1993, Detective John Halloran questioned John Willer (Willer) about the incident. Willer told police that on February 3, 1993, he spoke with defendant on the telephone. Defendant told Willer that defendant's sister had been jumped by some girls; that defendant went to the girl's high school and beat the girls; that defendant was kicked out of his house; and that defendant and a friend went to Curie High School and "busted caps" with some Latin Kings. When Willer told defendant that the victim lived on Willer's block, defendant informed him that he killed the victim in retaliation for a friend's death. Assistant State's Attorney Sherry Biedar (ASA Biedar) met with Willer and took his statement.

On February 11, 1993, both Robinson and Hendricks identified defendant as the shooter from a lineup. That same day Willer testified before the grand jury. Willer's testimony was virtually identical to the statement he gave to the police and ASA Biedar the previous day. On November 17, 1993, the police contacted Willer again. Detective Thomas Finnelly (Finnelly) informed Willer that phone records did not support Willer's statement as to when the phone calls with defendant were made. Willer told Finnelly that he merely confused the dates, that the conversation actually took place on February 5, 1993, and that the rest of his statement was true.

At trial, Willer changed his testimony. Willer claimed that the police mistreated him, coercing his statement against defendant. The defense offered phone records to show that Willer's conversation with defendant could not have occurred when Willer originally claimed it had. The trial court permitted the State to publish Willer's grand jury testimony as substantive evidence. In addition, the State offered ASA Biedar's testimony that Willer's statements were made voluntarily. Over defense objection, the trial court allowed ASA Biedar to publish to the jury, as substantive evidence, Willer's written statement, which he signed in her presence.

The jury began deliberations in the late afternoon of Friday March 18, 1994. Approximately five hours later, the jury notified the judge that they could not reach a unanimous verdict. The judge consulted with the parties and, over defense objection, offered a Prim instruction. Later that evening, the judge called the jury out and had them sequestered overnight. The jury reconvened the next morning. At approximately 4:30 p.m. that afternoon, the jury reached a verdict. The jury found defendant guilty of first degree murder. The jury was polled and the verdict was unanimous. After considering factors in aggravation and mitigation, the trial court sentenced defendant to 45 years' imprisonment.

Defendant first argues that the State's substantive use of Willer's prior inconsistent statements denied him due process and a fair trial. We disagree. Section 115-10.1 of the Code of Criminal Procedure provides for the substantive admissibility of prior inconsistent statements in criminal cases. 725 ILCS 5/115-10.1 (1992). Paragraphs (a) and (b) of that section require that the prior statement be inconsistent with the offered testimony and that the witness be subject to cross-examination. Once these requirements are satisfied, the court must determine if the statements fall within paragraph (c)(1) or (c)(2) of section 115-10.1. A paragraph (c)(1) statement is a statement made under oath at a trial, hearing, or other proceeding, such as a grand jury proceeding. A paragraph (c)(2) statement is a statement the witness wrote, signed or acknowledged under oath which "narrates, describes, or explains an event or condition of which the witness had personal knowledge. " (Emphasis added.) 725 ILCS 5/115-10.1(c)(2) (1992). This personal knowledge requirement is a key distinction between section (c)(1) and (c)(2) statements. In the instant case, the State contends that Willer's grand jury testimony was admissible under paragraph (c)(1), while his written statement taken by Assistant State's Attorney Biedar was admissible under paragraph (c)(2) of section 115-10.1.

Initially, we find that the grand jury testimony was properly admitted under paragraph (c)(1). Willer's trial testimony differed dramatically from his grand jury testimony. In addition, Willer was available for cross-examination. Finally, the statement satisfies the (c)(1) requirement that the witness' prior inconsistent statement be made under oath at a judicial proceeding. Therefore, Willer's grand jury testimony was admissible under section 115-10.1. However, we disagree with the State's contention that Willer's statements to ASA Biedar were admissible under paragraph (c)(2) of that section.

We acknowledge that Willer's statements to ASA Biedar satisfy paragraphs (a) and (b) of section 115-10.1. The flaw in the State's reasoning is the contention that Willer's statements satisfy the personal knowledge requirement under paragraph (c)(2). The personal knowledge requirement is not satisfied when the witness merely testifies as to what another claims to have done. People v. Saunders, 220 Ill. App. 3d 647, 580 N.E.2d 1246, 162 Ill. Dec. 827 (1991). Rather, the witness must have personally observed the events which are the subject matter of the other's comments before they can be admitted under paragraph c(2). Saunders, 220 Ill. App. 3d 647, 580 N.E.2d 1246, 162 Ill. Dec. 827. Such statements carry an indicia of reliability because a witness is less likely to ...

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