Appeal from Circuit Court of Macon County No. 98CF697 Honorable James A. Hendrian, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
Following a trial in the circuit court of Macon County, the jury found defendant Derek L. Edwards guilty of home invasion. 720 ILCS 5/12-11(a)(2) (West 1996). The trial court sentenced him to six years' imprisonment. The issues on appeal are whether (1) the prosecutor's disclosure of and argument concerning Armar Washington's guilty plea and testimony at sentencing in connection with the same offense on which defendant was being tried amounted to plain error; (2) the prosecutor's reading from the transcript of Washington's testimony from his sentencing following his guilty plea constituted plain error; (3) the prosecutor's questioning of City of Decatur police officer Jack Baskett as to whether defendant made any statements after being arrested violated defendant's rights to a fair trial and to remain silent and was plain error; (4) defendant's right to confront and cross-examine witnesses was violated when the prosecutor introduced evidence that the non-testifying victim of the home invasion viewed defendant and his two alleged accomplices at an on-the-scene showup and amounted to plain error; (5) defense trial counsel's failure to raise and preserve the first four issues amounted to ineffective assistance of counsel; (6) the cumulative effect of these errors denied defendant a fair trial even if they would not individually require reversal; and (7) defendant was proved guilty beyond a reasonable doubt. We affirm. Only those facts necessary to an understanding of this court's disposition will be discussed.
We initially address defendant's specific contentions of error. These alleged errors were not preserved in the proceedings below, and defendant argues that this court should consider them as plain error or that the failure to preserve those issues was the result of a violation of his constitutional right to the effective assistance of counsel (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. 1, §8). The State counters by arguing that no error occurred or, in the alternative, any error that may have occurred was harmless.
The plain error rule (134 Ill. 2d R. 615(a)) may be invoked to protect the defendant from serious injustices and to preserve the integrity and reputation of the judicial process under either of the following circumstances: (1) the evidence is closely balanced and the issues should be considered to preclude argument that an innocent person may have been wrongly convicted, or (2) the errors are of such a magnitude that a substantial risk exists that the accused was denied a fair and impartial trial. People v. Vargas, 174 Ill. 2d 355, 363, 673 N.E.2d 1037, 1041 (1996). To establish ineffective assistance of counsel, defendant must satisfy the test announced in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), adopted in People v. Albanese, 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246, 1255-56 (1984). We deem it necessary to address the issues to determine whether plain error occurred.
Section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) allows for the use of prior inconsistent statements made by a witness as substantive evidence when the prior statement was made under oath at a trial, hearing, or other proceeding and the declarant is subject to cross-examination concerning the statement in the current proceeding. 725 ILCS 5/115-10.1(a), (b), (c)(1) (West 1996); People v. Bennett, 222 Ill. App. 3d 188, 201-02, 582 N.E.2d 1370, 1380 (1991); see also People v. Sims, 285 Ill. App. 3d 598, 610, 673 N.E.2d 1119, 1127 (1996) (witness' grand jury testimony was admissible as substantive evidence); People v. Young, 170 Ill. App. 3d 969, 977-78, 524 N.E.2d 982, 987 (1988) (section 115-10.1 is constitutional and allows for substantive use of a prior inconsistent statement under specified circumstances).
In the case at bar, the State called Washington to testify in defendant's trial. Washington had pleaded guilty to the home invasion for which defendant was being tried. At defendant's trial, Washington testified that he did not remember the events on the date of the home invasion. He admitted, however, that on May 15, 1998, he entered a guilty plea. Washington acknowledged that at the sentencing following the guilty plea proceeding he stated, under oath, that his uncle Tobias Jarrett, defendant, and he went to the house of Michael McGee to steal drugs. Washington further acknowledged stating under oath at his sentencing that he and defendant were armed, he had a 9-millimeter weapon, defendant had a ".357," and they went late at night. He did not remember testifying at his sentencing that defendant knocked on the door and entered when it was opened, he (Washington) demanded drugs, McGee grabbed one of the guns and he (Washington) hit McGee in the head; at that time, defendant and Jarrett were standing behind him (Washington), McGee fell, and Washington ran out of the house; while being pursued by the police, he threw the gun into a Dumpster; he and defendant changed clothes when they reached 279 West Prairie, and the police came and arrested them. Washington remembered being injured when he hit McGee, but did not remember what he said at his sentencing about 10 days later. He remembered pleading guilty, but did not remember being asked those questions and giving those answers. Washington testified he did not remember the events because he was intoxicated on drugs on the day of the home invasion.
The defendant objected to the form of the questioning, being "were you asked and did you swear to." The objection was overruled because it was "impeachment." No limiting instruction was tendered by defense counsel or given by the trial court. The transcript of the sentencing proceeding was not admitted into evidence, nor was any other document indicating precisely what Washington said at the guilty plea proceeding. The court reporter was not called to testify. The State's motion to admit the transcript into evidence was met with defendant's objection on the grounds that (1) the transcript was not proved or stipulated to be accurate and (2) defendant was not given the opportunity to cross-examine the witness at the time he gave the prior statements under oath. That objection was sustained. In addition, defendant's counsel asked that Washington's testimony be stricken. That motion was denied. The trial court reasoned that defendant did not offer any objection to Washington's testimony after the original impeachment on the ground that the questioning was improper because it went beyond impeachment, and the objection was not timely.
Generally, the admissibility of evidence at trial is a matter within the sound discretion of the trial court, and the trial court's decision will not be overturned on appeal absent an abuse of discretion. People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519 (1991). However, this court independently reviews constitutional issues. Lilly v. Virginia, 527 U.S. ___, ___, 144 L. Ed. 2d 117, 134, 119 S. Ct. 1887, 1900 (1999).
The veracity of a hearsay statement is sufficiently dependable to allow an "untested admission of such statements against an accused" if the evidence falls into a firmly rooted hearsay exception or sufficient particularized guarantees of trustworthiness exist so that further adversarial testing would add little, if anything, to the statement's reliability. Lilly, 527 U.S. at ___, 144 L. Ed. 2d at 127, 119 S. Ct. at 1894. Where evidence is offered by the prosecution to establish the guilt of an alleged accomplice of the declarant, accomplice "confessions" that inculpate a criminal defendant do not fall within a firmly rooted hearsay exception. Lilly, 527 U.S. at ___, 144 L. Ed. 2d at 130-33, 119 S. Ct. at 1897-99. The presumption of unreliability that attaches to a co-defendant's confession may be rebutted, but that is unlikely where the government is involved in the statement's production, the statement describes past events, and it has not been subjected to adversarial testing. The notion that corroborating testimony supports a finding of particularized guarantees of trustworthiness has been rejected. Lilly, 527 U.S. at ___, 144 L. Ed. 2d at 134-35, 119 S. Ct. at 1900.
Lilly involved the admissibility of a non-testifying co-defendant's statement to police made while in custody. In contrast, the case at bar involves an accomplice's sworn testimony in open court at the time of or after pleading guilty where the accomplice is available to be cross-examined concerning that testimony at the defendant's trial. Section 115-10.1 of the Code is a legislative determination that a statement made under circumstances set out in the statute provide sufficient particularized guarantees of trustworthiness. A prior statement of a witness may constitutionally be admitted as substantive evidence if it is inconsistent with the witness' testimony and the witness is given an opportunity at trial to explain or deny the prior statement, such as when the defendant is given an opportunity to cross-examine the witness. Young, 170 Ill. App. 3d at 978-79, 524 N.E.2d at 987-88, citing California v. Green, 399 U.S. 149, 158, 26 L. Ed. 2d 489, 497, 90 S. Ct. 1930, 1935 (1970) (upholding a California statute). In the case at bar, the evidence of Washington's testimony at the time of his sentencing was admissible as substantive evidence. No error, plain or otherwise, occurred and defendant's counsel was not ineffective for failing to raise or preserve the issue for appeal.
Defendant contends that the manner in which the State brought out the evidence was not appropriate, particularly because the State failed to demonstrate that Washington's testimony was damaging to its case. A prior inconsistent statement may be used for impeachment even if it does not meet the standard set forth in section 115-10.1 of the Code. 725 ILCS 5/115-10.1 (West 1996) (last paragraph). A party may impeach its own witness with a prior inconsistent statement if the witness' testimony has damaged, rather than failed to support, the position of the impeaching party. Sims, 285 Ill. App. 3d at 610, 673 N.E.2d at 1127. The requirement that the witness' testimony must damage, rather than fail to support, the position of the impeaching party recognizes the danger that the statement may be improperly introduced under the guise of impeachment. Such a statement may not be used substantively. People v. Cruz, 162 Ill. 2d 314, 358-59, 643 N.E.2d 636, 657-58 (1994). Having already determined that the prior testimony was admissible as substantive evidence, we need not address this argument even though the trial court was under the impression that it was admitted solely for impeachment. For this reason, the failure of defense trial counsel to preserve the issue, object to the form of the impeachment and the prosecutor's argument, and offer a limiting instruction did not amount to ineffective assistance of counsel.
Neither of the cases primarily relied on by defendant analyze the facts in those cases in light of section 115-10.1 of the Code, and both predate it. In People v. Sullivan, 72 Ill. 2d 36, 42, 377 N.E.2d 17, 20 (1978), the court applied the general rule that a co-defendant's or accomplice's confession or admission is inadmissible as evidence of another defendant's guilt. In Sullivan, at the time of defendant's trial, one of the two accomplices refused to testify and the other refused to testify as to the details of the events or to discuss who else was involved. The prosecutor argued to the jury that defendant was as guilty as the two who had already pleaded guilty and attributed their reluctance to testify to a "code of honor." Here, the prosecutor did not argue the defendant was guilty because Washington pleaded guilty. Moreover, Washington did not refuse to testify. We need not decide whether the analysis in Sullivan would be different in light of the subsequent enactment of section 115-10.2 of the Code (725 ILCS 5/115-10.2 (West 1996)). In Sullivan, the prior testimony of the accomplices was not admitted into evidence. The Sullivan opinion observed that, while the fact that a co-defendant or accomplice has pleaded guilty or has been convicted of the same offense was not admissible as evidence of defendant's guilt, that fact may nevertheless be disclosed to the jury as impeachment. Sullivan, 72 Ill. 2d at 42, 377 N.E.2d at 20. Here, the State was allowed to impeach its own witness, Washington, with the fact that he had pleaded guilty after he testified herein that he did not recall the events surrounding the home invasion. However, it is his sworn statements made during the sentencing proceeding that were admitted substantively and which are at issue in this appeal.
In People v. Ferguson, 11 Ill. App. 3d 914, 915, 297 N.E.2d 658, 659-60 (1973), the State called a witness who had testified at a prior trial at which a co-defendant was convicted, had him declared a court witness when he denied knowing the defendant or victim contrary to his prior testimony, and read before the jury the entire transcript of the witness' testimony at the co-defendant's trial. In addition, the trial court in Ferguson (1) refused to give an instruction that would limit the jury's consideration of the material contained in the transcript and (2) allowed the prosecutor to argue the information contained in the transcript. In Ferguson, the court found the transcript was not competent as evidence, would not be admissible except as impeachment, was highly prejudicial to the accused, and should not have been admitted into evidence. In light of the subsequent enactment of section 115-10.1 of the Code, we decline to follow Ferguson.
The next issue concerns the testimony of the arresting police officer. After Decatur police officer Jack Baskett testified defendant, Washington, and Jarrett were taken into custody, the State asked Baskett without objection by the defense whether defendant made any statements to him. Also without objection by the defense, Baskett replied, "None that I can remember." Defendant argues that this violated his right to remain silent and denied him a fair trial. This questioning occurred during the ...