Appeal from the Circuit Court of Kane County. No. 09-CF-877 Honorable Thomas E. Mueller, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Zenoff and Birkett concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant, David E. Jenkins, was found guilty of obstructing justice (720 ILCS 5/31-4(a) (West 2008)) and was sentenced to an 18-month term of conditional discharge and 100 hours of public service. Defendant contends on appeal that the trial court erred by (1) limiting his examination of his wife and son about a conversation with an Elgin police officer that led to his prosecution, and (2) admonishing his son about the privilege against self-incrimination. We reverse.
¶ 2 The indictment charged defendant with obstructing justice in March 2009, "in that defendant with the intent to obstruct the prosecution of David T. Jenkins, knowingly furnished false information to Officer Barnard, a police officer, as to whether he had a son." There is no dispute that David T. Jenkins was defendant's then 17-year-old son.
¶ 3 At trial, during his opening statement, defense counsel assured the jury that it would hear a different account of defendant's brief conversation with Barnard. Defense counsel indicated that defendant was speaking with his son on a cellular telephone when Barnard arrived, and defendant's son heard the conversation over the telephone. In addition, defendant's wife, Carol Jenkins, was present during the exchange between Barnard and defendant. Defense counsel indicated that defendant's wife and son would give the following account of the exchange between Barnard and defendant:
"A male police officer comes up and says I'm looking for David Jenkins. I'm he. Do you own a white Mustang? No, I don't, but my son does. Does he go by Junior? No he doesn't he goes by David Theodore Jenkins. Is he here? No. Do you know where he is? No. He lives with his mother."
¶ 4 The State's first witness was Elgin police officer Jason Barnard, who testified that he spoke to defendant at defendant's home. Barnard identified himself as a police officer and told defendant that he was investigating a minor traffic accident and looking for "a" "David Jenkins." Defendant indicated that he was David Jenkins. Based on his investigation, Barnard expected the driver of the Mustang to be younger than defendant, so he asked defendant whether there was a "Junior David Jenkins." Defendant responded that there was not. Barnard testified that he then asked defendant whether he had "a son named David Jenkins." According to Barnard, defendant answered "no." Barnard testified, "At that point I asked him, so you don't have a son named David Jenkins who drives a white Mustang?" According to Barnard, defendant said that he did not.
¶ 5 Barnard further testified that Officer Heather Farrell approached, and defendant thereafter stated that he did have a son named David Jenkins, who did not own the Mustang but whose mother owned it. Barnard testified that he placed defendant "under arrest for obstruction."
¶ 6 On cross-examination, Barnard admitted that defendant was being truthful when defendant told him that he was David Jenkins. Barnard admitted that there was a woman present during the conversation with defendant, but he could not recall what she was doing during the conversation. Barnard could not recall whether he made any statements to her, and he could not recall whether she made any statements to him. Barnard admitted that he spoke with defendant "[m]aybe two minutes, if that," prior to arresting him.
¶ 7 Elgin police officer Heather Farrell testified that she was on duty with Barnard. Farrell testified that she heard the conversation between Barnard and defendant. Farrell testified that "[t]he conversation they were having was whether or not he had a son named David Jenkins, and the Defendant had said no."
¶ 8 On cross-examination, Farrell acknowledged that there was a white female standing on the stairs just inside the door, approximately six feet from her and Barnard and defendant. Farrell testified that she observed the female in the background throughout the conversation.
¶ 9 Before the defense proceeded with its case-in-chief, the State asked the trial court to advise defendant's son of his fifth amendment privilege against self-incrimination. The State indicated that, if defendant's son testified that he overheard the conversation between defendant and Barnard, he might risk being prosecuted for eavesdropping. The State also argued that anything defendant's son heard over the telephone would be inadmissible hearsay. With respect to the hearsay issue, defense counsel responded that defendant's son's testimony would contradict, and thereby impeach, Barnard's testimony and was admissible for that purpose. Defense counsel also argued that, although defendant's son heard the conversation over the telephone, he was no less competent than defendant's wife-who was physically present during the conversation-to testify as to what he heard. That suggestion prompted the State to object that defendant's wife's testimony would also be inadmissible hearsay. The trial court ruled that defendant "[could] certainly use [his wife's and son's testimony] to impeach the officer's testimony," but could not bolster his own testimony "by having [his wife and son] parrot what he is going to say he said."
¶ 10 Before defendant's son took the stand, the trial court warned him that his testimony might subject him to prosecution for eavesdropping and advised him of the privilege against self-incrimination. Defendant's son initially chose to testify. However, when the questioning turned to the subject of whether he had overheard the conversation between defendant and Barnard, the trial court reiterated that defendant's son might face a charge of eavesdropping as a result of his testimony and that he could not be compelled to testify. At that point, defendant's son declined to testify further.
¶ 11 Defendant then called his wife, Carol Jenkins, as a witness. Defense counsel asked whether Barnard told defendant that he was looking for David Jenkins. The State objected, stating, "This isn't impeachment." The trial court sustained the objection. Defense counsel next inquired whether the officer asked defendant if he was David Jenkins. The State objected and a sidebar ensued at which the trial court implied that the answer to the question would be inadmissible because it would not contradict Barnard's testimony. Defense counsel next inquired whether the officer asked if David T. Jenkins lived at defendant's residence. The State objected that "[i]t doesn't contradict anything the officer testified to." The trial court sustained the objection. The trial court also sustained the ...