Appeal from the Circuit Court of Cook County. No. 94 CR 4624 Honorable Reginald Baker, Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
MODIFIED UPON DENIAL OF REHEARING as corrected March 17, 2006
Following a jury trial, defendant Anthony Brown was convicted of murder, attempted murder, two counts of armed robbery, and attempted armed robbery. He was sentenced to 26 years= imprisonment for murder, attempted murder and one armed robbery count, and a concurrent 6 years for the other armed robbery count and attempted armed robbery. Defendant contends on appeal that the trial court erred in publishing to the jury the custodial statements and prior testimony of two co-defendants who did not testify at trial. *fn1 He argues that the statute authorizing the admission of the statements and testimony, section 115-10.2 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.2 (West 2002)), was unconstitutionally applied because it (1) infringed upon his constitutional right under the confrontation clause (U.S. Const. amend. VI; Ill. Const. 1970, art. I, *8) to confront the witnesses against him, and (2) was applied retroactively, in violation of the constitutional prohibition of ex post facto laws. The State concedes that the admission of the statements and testimony violated the confrontation clause but contends that this court should affirm defendant=s conviction because the error was harmless beyond a reasonable doubt.
Before trial, the State filed a motion in limine to introduce into evidence the custodial statements and prior trial testimony of co-defendants Kilsey Shearrill and Arthur Noland. The trial court denied the motion. On interlocutory appeal, this court reversed, directing the trial court to apply Code section 115-10.2. People v. Brown, No. 1-98-1669 (2001) (unpublished order under Supreme Court Rule 23). At the commencement of trial, defendant renewed his objection to the evidence from Shearrill and Noland, and the court denied the objection.
At trial, Umesh Shah testified that, in January 1994, he and his wife Elia and son Parthiv owned a store, Herman=s Food and Deli (Herman=s Deli), at 20 West 138th Street in Riverdale. The store was separated by a wall into two separate areas, the grocery and liquor sections, each with its own exterior entrance. Every day, the exterior door in the liquor section was locked until 2:30 p.m. An interior door connected the two sections. The store had a working video surveillance system. It was not used to record, only to view from one location what was happening throughout the store.
On January 26, 1994, Umesh and Elia were working in the liquor section while employee Sandi Crosson was working in the grocery section. Shortly before noon, Umesh was preparing to make a bank deposit when a Ahigh school student* who frequented the store entered the liquor section wearing a winter cap. When the young man came to the liquor counter with a bottle of beer, Umesh asked to see his identification. The man said that he did not have any identification, so Umesh told him that he could not buy the beer and took the beer bottle from him. The man walked Aa couple steps* toward the door between the liquor and grocery sections. He then turned, said AHoldup* and fired a gunshot. Umesh was shot in the left bicep. The young man jumped up on the counter and fired another shot at Umesh, striking him in the left upper thigh. The young man then turned toward Elia and fired four shots, followed by clicking. Elia was shot in the chest. When the weapon was empty, the young man fled into the grocery section, where Umesh followed him and Crosson tried to grab him. He pushed Crosson away and fled the store headed westbound toward a nearby railway line. He had not taken any money from the store.
While in the hospital for his wounds, Umesh told the police that he could identify the young man. The police sent a sketch artist to the hospital, where he and Umesh developed a composite sketch of the robber. On February 3, 1994, Umesh viewed a lineup at the Riverdale police station, identifying Shearrill as the young man who robbed his store.
Sandi Crosson testified that, on January 26, 1994, she was working as a cashier in the grocery section of Herman=s Deli. At about noon, two young black men entered the store. One wore a bandanna covering his lower face and a Georgetown coat with the hood pulled down to his eyebrows. From the visible portion of the first man=s face, including a prominent gap between his front teeth, Crosson identified defendant in court as the first man. The other man covered part of his face with a ski mask and wore a white jacket. Defendant approached the grocery counter with chips and candy. Crosson did not see where the second man had gone while she processed defendant=s purchase. A third black man entered the store, wearing a white coat and a ski mask covering his entire face. He looked at defendant and then produced a revolver. Defendant jumped behind the grocery counter, shoved Crosson aside, and demanded the money from the lottery machine. When Crosson opened the lottery machine, defendant punched Crosson in the mouth and removed the money from the machine. At that moment, gunshots rang out from the liquor section. Upon hearing the shots, defendant picked up the lottery machine money and a bank deposit bag from under the counter, and the two men fled. They headed westbound toward the railway viaduct when they left the store. Crosson hit an alarm panic button and headed toward the exit to find a public telephone, the store=s telephone being out of order. At this point, the man Adoing the shooting on the liquor side* fled past Crosson. She grabbed him, but then let him go in the belief that he was armed. He fled westbound underneath the railway viaduct. As Grosson was telephoning the police, Umesh appeared, severely bleeding, and said that Elia was dead. Crosson later determined that defendant had taken between $200 and $300.
On January 28, police showed Crosson a composite sketch of a man whom she identified as the man who fired shots in the liquor section and fled. On February 5, she viewed a lineup of six men at the Riverdale police station and identified defendant as one of the robbers. She was paying attention only to the area of their faces that had been uncovered on the first robber=s face, and she had the men in the lineup smile so she could see if they had the robber=s front-teeth gap. At trial, Crosson identified a ski mask and white coat as those worn by the third robber, the one who had pointed a revolver at her.
Dr. Edmond Donoghue, with the Cook County medical examiner, testified that he conducted the autopsy on Elia Shah on January 27, 1994. Elia was shot in the right chest, twice in the neck, and twice in the left chest. It was Dr. Donoghue=s medical opinion that she died of these gunshot wounds. Dr. Donoghue recovered and inventoried three bullets from Elia=s body.
Dr. Gary Merlotti, a trauma surgeon, testified that he treated Umesh Shah at Christ Hospital in Oak Lawn on January 26, 1994. Umesh had two gunshot wounds, one in the left arm with the bullet lodged in his shoulder, and one in his left thigh, where the bullet passed through. During surgery to repair the nerves and blood vessels in Umesh=s left arm, Dr. Merlotti recovered and inventoried the bullet in Umesh=s left shoulder.
The parties stipulated that Investigators James Tomasek, Emory Cox, and Lee Wojtas of the sheriff=s police would testify that they examined the crime scene at Herman=s Deli on January 26, 1994. They recovered various objects, two latent fingerprints from the liquor counter, and five latent fingerprints from the cooler in the liquor section. They also obtained fingerprints from Elia Shah, defendant, Shearrill, and Noland. The parties stipulated that forensic scientist James Fazekas of the State Police crime laboratory would testify that he examined the aforementioned objects and fingerprints. None of the objects had useable latent fingerprints, and the prints recovered from the counter and cooler did not match those of Shah, defendant, Shearrill, or Noland.
Officer Jeff Michalek of the Riverdale police testified that he responded to a call of a robbery and shooting at Herman=s Deli. Since it was stated in the dispatch that the three suspects had fled westward, Officer Michalek proceeded to the area west of the store. After speaking with a passerby, Officer Michalek climbed up on the railway viaduct. There, he saw two sets of footprints in the fresh snow, heading westward across the tracks and proceeding down the far side of the viaduct, where he lost the trail. Officer Michalek requested a canine unit, and Officer Riley responded with a dog. Proceeding from the footprint trail, Officer Riley and his dog traveled southwestward and stopped at the house of Arthur Noland. Officer Michalek saw Noland come out of the house and begin to shovel the snow in front of his house. The police dog with Officer Riley Aalerted* or reacted to the back door of Noland=s house. Officer Michalek could not recall if the dog alerted to Noland himself.
Assistant State=s Attorney (ASA) John Somerville testified that, on February 2, 1994, he went to the Riverdale police station to interview Noland. Noland told ASA Somerville where Acertain items* from the Herman=s Deli robbery were located. Noland was then allowed to make a telephone call, and he called his sister Dimiata. Later, when the items -- a black knit ski cap, a coat, and a revolver -- were brought to the police station, ASA Somerville showed them to Noland, who identified them as the clothing he ...