                                               First Division
                                               October 20, 2008



No. 1-05-2969


THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
                                          )    Cook County.
                 Plaintiff-Appellee,      )
                                          )
                                          )
     v.                                   )    No. 00 CR 24953
                                          )
                                          )
JOSEPH EASTLING,                          )
                                          )    Honorable
                                          )    James M. Schreier,
                 Defendant-Appellant.     )    Judge Presiding.


     JUSTICE HALL delivered the opinion of the court:

     Following a jury trial, defendant Joseph Eastling was found

guilty of first-degree murder in the shooting death of Dwayne

Cobbins.    Defendant was subsequently sentenced to natural life

imprisonment without parole.

     Defendant contends on appeal that his sixth amendment right

to confront witnesses against him was violated when the trial

court improperly admitted State witness Julius Wilson's prior

statements to the grand jury and his prior statements to police

as substantive evidence under section 115-10.1 of the Code of

Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West

1998)).    For the reasons that follow, we affirm.

     The State presented evidence that on February 29, 2000, at

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approximately 4:15 in the afternoon, defendant and two of his

fellow gang members, one of whom is a codefendant and the other

who is now deceased, drove up beside the victim's double-parked

car and fatally shot the victim as he sat in the car talking to a

man standing curbside.    The State theorized that the shooting was

motivated by a gang war between defendant's gang, The One Ways,

and the victim's gang, The Imperial Insane Vice Lords or Double

I's.

       Julius Wilson, a convicted felon, was called as a witness by

the State.    Wilson testified that at the time of the shooting he

was a member of the Traveling Vice Lords street gang.    Wilson's

gang was affiliated with the defendant's gang.

       At the time of his testimony, Wilson was being held in

custody pursuant to an outstanding warrant in connection with an

unrelated case.    On direct examination, Wilson denied ever

appearing before the grand jury.    Wilson also denied ever meeting

with Detective Kato to discuss this case, although he initially

admitted that the detective questioned him about the case and he

claimed he was forced into making the statements attributed to

him by the detective.

       Detective Kato testified about his meeting with Julius

Wilson.    The detective testified that on June 16, 2000, he

received information from a fellow detective that Wilson had


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information concerning the shooting.

     Detective Kato testified that Wilson told him that around

March 1, 2000, Wilson had a conversation with defendant during

which defendant stated that he had caught the victim "snoozing"

and had "chopped his ass," meaning he caught the victim off guard

and then fatally shot him.   Wilson also identified a photograph

of defendant as the person who admitted to killing the victim.

     Detective Kato further testified that Wilson told him that

in April or May 2000, Wilson and defendant observed the police

conduct a police raid on a building located at 4235 West

Kamerling.   Wilson stated that the defendant became visibly upset

when he saw a police officer exit the building carrying a rifle.

According to Wilson, defendant claimed that the rifle was the

same firearm he used to kill the victim.

     Detective Kato testified that Wilson gave his statement

under his own free will, he was never threatened into giving the

statement, and he was not offered anything in exchange for his

information.

     Based on Wilson's information, Detective Kato was able to

locate the rifle recovered in the police raid.   The rifle fit the

description of the firearm Wilson claimed he observed during the

raid.

     The prosecutor confronted Wilson with a transcript of his


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grand jury testimony after he denied appearing before the grand

jury.   When the prosecutor read Wilson the questions and answers

from the transcript, Wilson denied giving each and every answer

attributed to him.

     At this point, the trial court asked defense counsel for

defendant if he would stipulate that according to the court

reporter's notes the aforementioned questions and answers were

asked and given during Wilson's grand jury examination.   Defense

counsel agreed to the stipulation.

     Assistant State's Attorney (ASA) Ed Maloney then testified

about the circumstances surrounding Wilson's grand jury

testimony.   ASA Maloney testified that on September 20, 2000, he

presented Wilson to the grand jury in connection with this case.

ASA Maloney testified that he asked Wilson a series of questions

concerning the shooting incident and that Wilson provided him

with a series of answers to those questions.

     ASA Maloney then identified State's exhibit No. 46 as a true

and correct copy of the transcript of Wilson's grand jury

testimony. However, the trial court did not allow him to publish

the contents of the transcript to the jury because the court

determined that the State had already read through the transcript

during Wilson's direct examination.

     While the jury was out deliberating, the trial court called


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Julius Wilson and his counsel before the bench, stating as

follows:

            "THE COURT: The State just finished their last argument

     in this case.    I'm going to give the State until Friday to

     see whether or not they are going to indict [Wilson] for

     perjury and/or contempt.    And if they don't do it by Friday,

     I'll dismiss the petition.    If they do, that will be a whole

     different avenue.    But I've never seen or heard of any

     witness who has denied that he was the person who testified

     before the grand jury.    I never heard of such a thing.    I

     never saw it.    It might be the first in the annals of

     American criminal jurisprudence.    But it's not going to be

     for me to decide whether he should be indicted for it, or if

     he is, whether he's guilty or not guilty.

            The case will be held until Friday to see if the State

     decides to secure an indictment and if they do, whether

     there's a true bill voted.    That's all."1

                              ANALYSIS

     1
         Julius Wilson was indicted for perjury (People of the

State of Illinois v. Julius Wilson, No. 05 CR 19862 (Cir. Ct.

Cook Co.)).    On June 16, 2006, he pled guilty to committing

perjury in the instant case and received a two-year sentence of

imprisonment.

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     Defendant now contends on appeal that the admission of

Julius Wilson's prior statements to the grand jury violated

defendant's confrontation rights under the sixth amendment to the

United States Constitution (U.S. Const., amend. VI) because he

was denied an adequate opportunity to cross-examine Wilson

regarding his alleged grand jury testimony where Wilson claimed

he never appeared before the grand jury.

     Defendant also contends that Wilson's prior statements to

the grand jury were inadmissible as substantive evidence under

section 115-10.1(b) of the Code because he was denied an adequate

opportunity to cross-examine Wilson regarding these statements

where Wilson claimed he never appeared before the grand jury.

Defendant further contends that Wilson's prior statements to

Detective Kato were inadmissible as substantive evidence under

section 115-10.1 of the Code because the statements did not meet

the personal knowledge requirement of subsection (c)(2).    We

disagree.

     Initially, we note that defendant has waived these issues

for review because he failed to raise an objection to the

statements at trial and did not include these issues in his post-

trial motion. People v. Enoch, 122 Ill. 2d 176, 185-86, 522

N.E.2d 1124 (1988).   Furthermore, we find that the plain error

doctrine articulated in Supreme Court Rule 615(a) (134 Ill. 2d R.


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615(a)) does not apply because the statements at issue were not

so prejudicial as to deprive defendant of a fair trial and the

evidence was not closely balanced. People v. Laugharn, 297 Ill.

App. 3d 807, 810-11, 698 N.E.2d 219 (1998).

     Nevertheless, even absent waiver, we find that the trial

court did not err in admitting the statements at issue.

     We generally review the admissibility of evidence at trial

for an abuse of discretion. People v. Aguilar, 265 Ill. App. 3d

105, 109, 637 N.E.2d 1221 (1994).    However, we independently

review constitutional issues. People v. Edwards, 309 Ill. App. 3d

447, 452, 722 N.E.2d 258 (1999).

     "A criminal defendant has a fundamental constitutional right

to confront the witnesses against him, which includes the right

to cross-examination." People v. Kliner, 185 Ill. 2d 81, 130, 705

N.E.2d 850 (1998); see also People v. Davis, 337 Ill. App. 3d

977, 984, 787 N.E.2d 212 (2003) (confrontation clause gives

criminal defendant the right to cross-examine witnesses against

him in order to show bias, motive, or other factors which might

influence testimony).

     However, the confrontation clause guarantees only "'an

opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever

extent, the defense might wish.'" (Emphasis in original.) People


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v. Flores, 128 Ill. 2d 66, 89, 538 N.E.2d 481 (1989), quoting

United States v. Owens, 484 U.S. 554, 559, 98 L. Ed. 2d 951, 957,

108 S. Ct. 838, 842 (1988).   The confrontation clause includes no

guarantee that a witness's testimony will not be "marred by

forgetfulness, confusion, or evasion.   To the contrary, the

[c]onfrontation [c]lause is generally satisfied when the defense

is given a full and fair opportunity to probe and expose these

infirmities through cross-examination, thereby calling to the

attention of the factfinder the reasons for giving scant weight

to the witness' testimony." Delaware v. Fensterer, 474 U.S. 15,

21-22, 88 L. Ed. 2d 15, 21, 106 S. Ct. 292, 295 (1985).

      Consequently, a witness's claimed inability to recall a

prior out-of-court statement does not violate a defendant's right

of confrontation as long as the witness is physically present at

trial, takes an oath to testify truthfully, and answers questions

put to him during cross-examination. Flores, 128 Ill. 2d at 89-

90.   Under these circumstances, a defendant has a full and fair

opportunity to expose deliberate falsehoods or genuine flaws in a

witness's memory. See Owens, 484 U.S. at 559, 98 L. Ed. 2d at

958, 108 S. Ct. at 842 (confrontation clause not violated where a

defendant has a full and fair opportunity to bring out a

witness's bad memory and other facts tending to discredit his

testimony).


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     Here, Julius Wilson's assertions that he never appeared

before the grand jury and that he never spoke to Detective Kato

about the shooting incident did not deprive defendant of the

opportunity to effectively cross-examine Wilson within the

meaning of the confrontation clause.   Wilson was physically

present at trial and confronted the defendant face-to-face, he

was competent to testify and testified under oath, defense

counsel had a full opportunity for contemporaneous cross-

examination, and the judge, jury, and defendant were able to

observe Wilson's demeanor and body language and evaluate for

themselves whether he was being truthful when he testified that

he never appeared before the grand jury and never spoke to

Detective Kato about the shooting incident.

     This examination satisfied the primary purpose of the

confrontation clause, which is to facilitate the truth-finding

process by providing the trier of fact with a satisfactory basis

for evaluating the truth of a prior out-of-court statement.

United States v. Baker, 722 F.2d 343, 349 (7th Cir. 1983); People

v. Jenkins, 104 Ill. App. 3d 522, 524-25, 432 N.E.2d 1171 (1982).

     In contrast to cases in which the witness either invoked a

fifth amendment privilege against self-incrimination and refused

to answer questions (Douglas v. Alabama, 380 U.S. 415, 420, 13 L.

Ed. 2d 934, 938, 85 S. Ct. 1074, 1077 (1965)), or claimed to have


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totally not remembered testifying before the grand jury (People

v. Yarbrough, 166 Ill. App. 3d 825, 520 N.E.2d 1116 (1988)),

Wilson testified under oath that he never even appeared before

the grand jury in connection with this case.   And although Wilson

testified that he never spoke to Detective Kato about the

shooting incident, he initially admitted that the detective

questioned him about the incident and claimed that he was forced

into making the statements attributed to him by the detective.

     The record clearly shows that the defendant was afforded the

opportunity to cross-examine Julius Wilson under oath and

challenge his credibility by calling the jury's attention to

Wilson's contentions that he never appeared before the grand jury

in connection with this case and was never questioned by

Detective Kato concerning the shooting incident.

     Finally, even though the portion of Wilson's statement to

Detective Kato in which he claims the defendant told him that he

shot the victim was inadmissible as substantive evidence under

subsection (c)(2) of section 115-10.1 of the Code because Wilson

had no personal knowledge of the event, such admission was

harmless where virtually identical evidence was properly admitted

through other witnesses.

     Allen Sanders, a convicted felon, testified that he had

known the victim for about 10 years and that they were both


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members of the same street gang.   Sanders claimed he also knew

defendant and codefendant.   On redirect, Sanders acknowledged

that he spoke with Detective Sam Cirone at the scene of the

shooting and identified defendant and codefendant as the

individuals who shot and killed the victim.

     Jarvell Jones testified that he was a member of the

Conservative Vice Lords street gang and that he grew up on the

same block where the shooting occurred and was friends with the

victim.   Jones testified that on the date of the shooting, he was

sitting on his porch when he saw the victim sitting in his car

talking to a man standing curbside.   At that point, defendant's

car pulled up beside the victim's car.

     Jarvell Jones testified that defendant was driving the

vehicle, and that the codefendant, who was sitting in the front

passenger seat, reached across defendant and shot at the victim.

Jones estimated that about 10 shots were fired.    On cross-

examination, Jones testified that he had seen defendant on two

prior occasions and recognized him because defendant had once

pulled a gun on him.

     Accordingly, for the reasons set forth above, the judgment

of the circuit court of Cook County is affirmed.

     Affirmed.

     R. GORDON, P.J., and WOLFSON, J., concur.


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