The opinion of the court was delivered by: Justice Karmeier
JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.
¶ 1 Following a bench trial in the circuit court of Cook County, defendant, Encarnacion Torres, was found guilty of first degree murder and sentenced to 20 years' imprisonment. On appeal, defendant contended that the trial court violated his constitutional right to confront the witnesses against him when it permitted the State to introduce into evidence the preliminary hearing testimony of the State's key and unavailable witness, Leopoldo Pena. The defendant also argued that he was denied his constitutional right to effective assistance of counsel when trial counsel failed to file a motion to dismiss the indictment on the ground that the defendant was denied his constitutional right to a speedy trial. The appellate court rejected defendant's claim of ineffective assistance, but reversed and remanded, finding that Pena's preliminary hearing testimony was improperly admitted and the error could not be considered harmless. No. 1-08-3254 (unpublished order under Supreme Court Rule 23). We allowed the State's petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), and now affirm the judgment of the appellate court.
¶ 4 On July 31, 1983, the defendant was arrested for the shooting death of the victim, Diego Cisneros. The following day, the defendant was charged with murder pursuant to section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, ¶ 9-1).
¶ 5 On August 16, 1983, a preliminary hearing was held to determine whether there was probable cause to support the prosecution of defendant for Cisneros' murder. At that hearing, the defendant was represented by attorney Robert Grossman. Two witnesses testified: Leopoldo Pena and detective David Kristovic. Only Pena's testimony is relevant to the issues in this appeal.
¶ 6 In order to provide some context for the circumstances under which Pena was questioned, we quote from the principals' colloquy immediately preceding Pena's testimony:
"MS. MARTIN [assistant State's Attorney]: Judge, I have made that amendment on the face of the complaint.
MR. GROSSMAN [defense counsel]: Waive reswearing and reexecution.
THE COURT: Very good. State's motion granted.
MS. MARTIN: Ready to proceed.
MR. GROSSMAN: Motion to exclude witnesses.
THE COURT: Ready to proceed right now?
THE COURT: You are putting me in a funny position. MS. MARTIN: Are you through your call yet?
THE COURT: You have to be kidding. Both ready? MR. GROSSMAN: Yes.
THE COURT: Let's proceed.
MS. MARTIN: I would be using an interpreter. We would have to have the interpreter sworn."
The interpreter was sworn, then the witness, and the preliminary hearing commenced amidst an obviously crowded docket, before a trial judge who had expressed some reluctance to immediately proceed with the hearing.
¶ 7 Upon direct examination, Pena testified that he worked as a bartender at a tavern located at 1752 West 47th Street in Chicago. According to Pena, at about 6 p.m., on July 30, 1983, he was in the tavern with the victim, Diego Cisneros, when the defendant walked in and asked for two six-packs of beer. The victim then told Pena that he and the defendant were from the same part of Mexico. As Pena was looking for the beers, he overheard parts of the conversation between the defendant and the victim. According to Pena, Cisneros asked the defendant what problems he had with his father; defendant purportedly responded, if he had any problems with Cisneros' father, "he wouldn't have to deal with him."
¶ 8 Pena testified that he gave the two six-packs of beer to defendant, and defendant placed the bag on a bar stool. However, the bag broke and a bottle of beer fell on the floor. Pena picked up the glass, put the beer in another bag, and then went to the back of the bar to get a mop to clean the floor. After Pena mopped the floor, he returned to the back of the bar to wash out the mop. He testified, at that point, he heard a gunshot. When Pena emerged from the back room, he saw the victim lying on the floor. Pena said he went to the door and "saw the person running." Pena then called the police. Pena testified that he observed the victim's body face up on the floor. He denied seeing a weapon in Cisneros' hand or in the area around his body.
¶ 9 Subsumed within Pena's preliminary hearing testimony was a very brief cross-examination of Pena by defense counsel. During that cross-examination, Pena stated he knew the victim "because he frequented the place." Defense counsel next attempted to ask Pena whether Pena knew the victim's father, but the court sustained the State's objection to that question. After defense counsel explained, "I'm going to go into bias or prejudice," the court told counsel to "go ahead." Defense counsel repeated the question, and Pena responded that he did not know the victim's father. Defense counsel then abandoned that line of inquiry altogether and never asked another question designed to probe for possible bias or prejudice.
¶ 10 Counsel turned to questions directed to Pena's observations and recall. On further cross-examination, Pena admitted that he never observed the defendant with a gun, and he did not see the defendant shooting or standing over the victim. He said he was in the back room of the tavern for "no more than one or two minutes," when he heard the shot. Pena stated that the back room of the bar was about 10 to 15 feet away from the bar itself. He acknowledged, from his vantage point in the back room, he could not see what was going on in the bar; however, he stated, prior to the shot, he could hear the defendant and Cisneros "speaking in normal tones." Pena admitted he could not hear what was being said because "he had the water running." He testified, with certainty, that he did not hear "an argument" or any raising of voices.
¶ 11 In the course of-and as it turned out, the conclusion of-this brief cross-examination, defense counsel asked: "What day of the week was this?" The State objected and the court sustained the objection. Defense counsel querulously inquired: "How is that objectionable?" The court responded by simply reiterating: "Sustained." With that, defense counsel decided he had "[n]othing further of this witness."
¶ 12 Based on the testimony of Pena and Kristovic, the circuit court found probable cause and set the ...