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People v. Krisik

Court of Appeals of Illinois, First District, Fifth Division

June 15, 2018

DONALD KRISIK, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 14 CR 7580 The Honorable Joseph M. Claps, Judge, Presiding.

          JUSTICE HALL delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.


          HALL JUSTICE

         ¶ 1 This appeal involves the applicability of the forfeiture by wrongdoing hearsay exception to an accused Sixth Amendment right to confrontation. We find that the trial court did not violate defendant Donald Krisik's confrontation rights by applying this hearsay exception.

         ¶ 2 Following a bench trial, defendant was convicted of aggravated battery and aggravated domestic battery of Michelle Ghorley. At sentencing the trial court merged the conviction for aggravated battery into the conviction for aggravated domestic battery. Defendant was sentenced as a Class X offender to 16 years' imprisonment. Defendant now appeals his convictions and sentence.

         ¶ 3 Defendant argues the trial court violated his constitutional Sixth Amendment right to confront witnesses against him when it admitted Ghorley's prior out-of-court statements into evidence. The trial court admitted the statements under the common-law doctrine of forfeiture by wrongdoing as codified in Rule 804(b)(5) of the Illinois Rules of Evidence (Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011))[1]. Defendant also argues that his 16-year prison sentence is excessive. We affirm.

         ¶ 4 BACKGROUND

         ¶ 5 Ghorley is defendant's former girlfriend and the mother of his young child. On April 17, 2014, during an argument at the home Ghorley shared with her family, defendant accused her of cheating on him. He slapped her in the face, grabbed her by the throat and began choking her. Defendant continued choking the victim until her sister, Star Ghorley, and a male family friend intervened and restrained defendant. Defendant left the home before the police arrived, but he was eventually arrested later the same day. Police photographs depicted bruising on Ghorley's arm and neck.

         ¶ 6 After his arrest, defendant's bond was set at $150, 000, and he remained in custody. A petition for an order of protection was filed on Ghorley's behalf and special conditions of bond were imposed against defendant. Specifically, defendant was ordered to stay away from Ghorley and have no further contact or communication with her.

         ¶ 7 Following a bond hearing on August 13, 2014, the trial court lowered defendant's bond to $90, 000, but kept the bond conditions in force. The court admonished defendant that if he interfered with the alleged victim, he would remain in custody until the case was over. Defendant replied that he understood. Defendant did not post bond and remained in custody.

         ¶ 8 At the trial call on September 5, 2014, defendant answered ready for trial. The State answered that it was not ready for trial because it had been unable to locate Ghorley and other witnesses to serve them with subpoenas. The trial court continued the case to October 23, 2014.

         ¶ 9 In the interim, defendant posted bond on September 25, 2014, and was released from custody.

         ¶ 10 At the October 23, 2014, court date, defense counsel answered ready for trial, but defendant requested the trial court give him extra time to retain private counsel. The State again answered that it was not ready for trial because it had still been unable to locate Ghorley and other witnesses to serve them with subpoenas. The case was continued to November 24, 2014.

         ¶ 11 At the November 24, 2014, court date, private counsel was granted leave to file an appearance on behalf of defendant. Counsel made an oral motion for the public defender to tender its discovery. The matter was subsequently continued by agreement of the parties from January 2015 to April 2015.

         ¶ 12 At a hearing conducted on April 29, 2015, the State informed the trial court that while defendant was in custody at the Cook County jail he violated the conditions of his bond by telephoning Ghorley on multiple occasions and meeting with her during a jail visit. The prosecutor presented audio recordings of phone calls defendant placed from the jail to Ghorley asking her to evade service, to not attend court on the days he planned to demand trial, and to move out of state or hide out at his mother's house. Defendant told Ghorley he would arrange for her to receive money to relocate to another state. Defendant also asked Ghorley to try and convince other witnesses to lie about what they saw and to deny that he committed the alleged offenses.

         ¶ 13 The State informed the trial court that it intended to file a forfeiture-by-wrongdoing motion, and asked the court to increase defendant's bond and take him into custody. The trial court granted the State's request to increase defendant's bond (it was increased to $300, 000) and defendant was taken into custody. The court stated it was particularly troubled by allegations that defendant had offered Ghorley money "to help hide her from the prosecution." The court stated that the allegations against defendant "cut[] to the heart of the court process."

         ¶ 14 The next day, April 30, 2015, the State filed a motion seeking to admit prior statements made by Ghorley and her sister Star. The State sought to admit a typewritten statement Ghorley gave to an Assistant State's Attorney (ASA) and the testimony she gave at a preliminary hearing.[2] The State also sought to admit a prior statement Star made to police.[3] The State sought to admit these statements under the doctrine of forfeiture-by-wrongdoing and pursuant to sections 115-10.2 and 115-10.7 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.2, 10.7 (West 2014)).[4]

         ¶ 15 The State argued that in the event Ghorley failed to appear in court, despite the continuing efforts to serve her with subpoenas directing her to appear, she should be deemed unavailable based on the ground that defendant's wrongful communications with her caused her absence. The State asked the trial court to find that defendant's wrongful communications with Ghorley caused him to forfeit his constitutional right to confront and cross-examine her at trial.

         ¶ 16 On May 6, 2015, a hearing was held on the State's motion. The parties stipulated to the unsuccessful efforts of investigators to locate and serve Ghorley and her sister Star with subpoenas. The parties also stipulated to the introduction of Ghorley's prior statements to police and the ASA, and her preliminary hearing testimony. The parties further stipulated to the foundation and authenticity of audio recordings of phone calls defendant placed from Cook County jail to Ghorley and his mother.

         ¶ 17 The phone calls were made in April and May of 2014. The prosecutor published the audio recordings for the trial court.

         ¶ 18 In the first recorded phone call made on April 20th, three days after his arrest, defendant spoke with his mother. He asked her to tell Ghorley not to attend court and to drop the charges. Defendant called his mother again on the 4th of May. He complained about Ghorley testifying at the preliminary hearing. Defendant told his mother to tell Ghorley that she needed to explain to the authorities that he never choked her, but rather grabbed her by the back of her neck. Defendant's mother responded that Ghorley had agreed to tell defense counsel that she wanted to testify on defendant's behalf and say that he never choked her.

         ¶ 19 Defendant next called his mother on the 7th of May. Defendant told his mother to remind Ghorley to tell his attorney that he never choked her or caused her to lose her breath. Defendant also told his mother to make sure Ghorley spoke with his attorney before speaking with the prosecutor, and to tell his attorney that she wanted to testify on his behalf and wanted to drop the charges as well as the order of protection. Defendant's mother repeatedly agreed to tell these things to Ghorley.

         ¶ 20 Defendant called Ghorley and spoke with her on May 8th. Defendant questioned her about her meetings with his attorney and the prosecutor. Ghorley told defendant she was informed that she could not just drop the charges, and that if she testified to something different, she would be impeached. Defendant told Ghorley she would have to leave the state in order for him to beat the case. Ghorley started crying and the phone call abruptly terminated.

         ¶ 21 Defendant immediately called Ghorley back and asked if her sister Star had spoken to the police or given them a statement. Defendant instructed Ghorley to tell Star to testify that she let him into the residence. Ghorley responded that Star hated defendant and would not lie for him. Defendant told Ghorley about the amount of jail time he was potentially facing and told her she should avoid service and leave the state. Defendant told Ghorley he would give her $1000 to relocate and that she should remain out of state for three or four months while he demanded a speedy trial.

         ¶ 22 Defendant told Ghorley he was going to demand trial on his next court date and that she should leave the state from July through October or November, when the case would be over. Ghorley responded that she did not know if she could relocate. Defendant told Ghorley he was going to demand trial and that he had to be tried within 120 days. He told Ghorley that the State would try to subpoena her. Ghorley started crying and said that she could not just quit her job and move away. Defendant repeated that he would give her $1000 to relocate. Ghorley remained silent on the phone for long portions of the call.

         ¶ 23 Defendant's mother came on the phone. Defendant told his mother that Ghorley needed to avoid being served with subpoenas. Defendant asked his mother if Ghorley could hide out at her house for three or four months. When Ghorley came back on the phone, defendant again implored her to help him by hiding out so she could avoid being subpoenaed. Defendant told Ghorley that the prosecution was "act[ing] like I tried to fuckin murder you or something, " causing Ghorley to shout back, "you did!" Defendant talked about returning home from prison when his infant son would be six years old. Ghorley told defendant, "I don't know what to do. I'm not going to be able to just up and quit my job and disappear for fucking months." Ghorley told defendant she did not want to "uproot" her children and move somewhere else. Defendant told Ghorley that if she did not appear in court, then the prosecution would be unable to use her prior statements against him because he could not cross-examine her about the statements. Ghorley began to cry again and the call was terminated.

         ¶ 24 The State offered to publish additional recorded phone calls for the trial court, but the court declined, stating, "I don't need more." After hearing argument from the parties, the trial court continued the matter so ...

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