Court of Appeals of Illinois, First District, Fifth Division
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.
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)). Defendant also argues that his 16-year
prison sentence is excessive. We affirm.
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
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
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. The State also sought to admit a prior
statement Star made to police. 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
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
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
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 ...