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People v. Tokich

July 21, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JESSE J. TOKICH, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County No. 98CF66 Honorable Leo J. Zappa, Jr., Judge Presiding

The opinion of the court was delivered by: Justice Knecht

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

A jury convicted defendant, Jesse Tokich, of first degree murder in the circuit court of Sangamon County. The trial court sentenced him to a term of 60 years in the Illinois Department of Corrections. He appeals his conviction, contending (1) the trial court erred by declaring one of the State's witnesses unavailable and allowing a videotaped evidence deposition of that witness under supreme Court Rule 414 (134 Ill. 2d R. 414); (2) the trial court deprived him of due process when it failed to define "reasonable doubt" upon a specific jury request to do so; and (3) the State failed to prove him guilty beyond a reasonable doubt. We affirm.

On the morning of December 6, 1997, Katherine Hopwood was strangled to death in her home with a pair of her own slacks. She was 83 years old. Defendant was arrested for her murder in January 1998. The State charged defendant with one count of intentional first degree murder, two counts of felony first degree murder, and one count each of robbery and home invasion in violation of sections 9-1(a)(1), 9-1(a)(3), 18-1(a), and 12-11(a)(1) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1), (a)(3), 18-1(a), 12-11(a)(1) (West 1996)). After several continuances the trial date was set for September 21, 1998.

Less than a week before trial, the State filed a motion for an evidence deposition. It alleged Springfield police Detective Timothy Young, one of the lead investigators on the case, would be unavailable to give live testimony at trial. Detective Young was scheduled to be out of the country for the adoption of a child in China. He would be gone from September 22 to October 4 and was unable to change his plans. The State requested it be allowed to take a videotaped evidence deposition of Detective Young pursuant to Rule 414.

At a hearing on the merits of the motion, the defense objected, presenting several arguments. First, if Detective Young testified on a television screen the jury would be less able to assess his credibility than if he were testifying live. Second, defendant contended Detective Young's testimony was not that crucial to the case because, although he did take more than one statement from defendant and interviewed many of the witnesses in the case, Detective Pat Ross was with Young for almost all of the interviews and would be able to testify to those same interviews, making Young's testimony merely cumulative. Finally, if the State were permitted to present Detective Young's testimony by videotaped deposition, it would have the benefit of the testimony while defendant would not have the benefit of Young for possible impeachment purposes if the State's witnesses whom he interviewed happened to change their stories during their in-court testimony. Defendant did not argue Detective Young's reasons for being unavailable did not fit the requirements of Rule 414.

The State countered by stating its willingness to stipulate to Detective Young having taken statements from any witnesses who change their stories and further stipulate that if Young were called he would testify to what their stories originally were. The prosecutor also argued while he could call Detective Ross for many of the same purposes as Detective Young, the State's concern was if Young were not called as a witness at all, the defense would be able to argue two detectives took statements from the defendant but the jury had only heard from one. This would permit the defense to query: Where was the other detective and why was he not called as a witness? The State did not want to leave itself open to such a charge.

The trial court noted its chief concern was the unavailability of Detective Young for use by defendant in impeaching witnesses who changed their stories. With the State's willingness to stipulate to what Young would have testified in that regard, the court granted the State's motion. Detective Young's testimony was videotaped and ultimately played to the jury at trial.

On appeal, defendant argues the trial court abused its discretion in granting the State's motion to take a videotaped evidence deposition of Detective Young because he was not "unavailable" in the sense contemplated by Rule 414. Defendant also contends the State could have continued the trial for the 13 days Detective Young was in China and still have begun the trial within the time allotted under the speedy trial rules. Defendant also notes while Detective Ross testified at trial he did not testify to the interviews of defendant to which Detective Young testified and, therefore, the State set itself up for the argument it wished to avoid: two detectives interviewed defendant but the jury only heard from one.

The State contends Detective Young's absence from the country at the time of trial fit any definition of "unavailable." He had been waiting for two years to adopt his child and would have missed the opportunity to adopt if he had not gone to China at that time. The State maintains Rule 414 does not contemplate the testimony of a witness must be forever unavailable in order to use the provisions of the rule but only the witness be unavailable on the date of trial.

Rule 414 provides:

"(a) If it appears to the court in which a criminal charge is pending that the deposition of any person other than the defendant is necessary for the preservation of relevant testimony because of the substantial possibility it would be unavailable at the time of hearing or trial, the court may, upon motion and notice to both parties and their counsel, order the taking of such person's deposition under oral examination or written questions for use as evidence at a hearing or trial." 134 Ill. 2d R. 414(a).

The use of videotaped depositions, as opposed to transcribed depositions, is within the discretion of the trial court but the exercise of that discretion "presupposes that the Rule 414 standards for the utilization of any deposition as evidence have been satisfied." (Emphasis in original.) People v. Johnson, 118 Ill. 2d 501, 507-08, 517 N.E.2d 1070, 1073 (1987). The court in Johnson noted Rule 414 was intended to strike a balance between the need to preserve evidence and a criminal defendant's right to have the witnesses against him testify before the jury so demeanor and credibility could be observed and judged. Johnson, 118 Ill. 2d at 508, 517 N.E.2d at 1074. Face-to-face live testimony should be the rule and any exceptions must be narrowly drawn and only upon a showing of special circumstances such as the unavailability contemplated by Rule 414. Johnson, 118 Ill. 2d at 508, 517 N.E.2d at 1074.

The Johnson court found the definition of "unavailability" included in Rule 804 of the Federal Rules of Evidence (see 28 U.S.C. app. Fed. R. Evid. 804 (1994)) to be instructive. Johnson, 118 Ill. 2d at 509, 517 N.E.2d at 1074. Under Rule 804, acceptable reasons for unavailability include privilege, persistent contemptuous refusal to testify, failure of memory, death, or illness of the witness. The Johnson court found the concept of "unavailability" to be a narrow one, subject to a rigorous standard. Johnson, 118 Ill. 2d at 509, 517 N.E.2d at 1074.

Defendant argues the reason for Detective Young's absence, while commendable, did not measure up to the high standards contemplated by Rule 414 as noted by Johnson. This, coupled with the possibilities of either having Detective Ross testify to the same things Young would have or of continuing the trial for a mere 13 days ...


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