                                                  SECOND DIVISION
                                                  June 26, 2007




No. 1-05-2110

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from the
                                        )    Circuit Court of
     Plaintiff-Appellee,                )    Cook County.
                                        )
          v.                            )
                                        )
TRAVIS DUFF,                            )    Honorable
                                        )    Nicholas Ford,
     Defendant-Appellant.               )    Judge Presiding.


     PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

     This case requires us to measure the harm caused by a

violation of the defendant's sixth amendment right to confront

witnesses against him.

     Following a bench trial, defendant Travis Duff was convicted

of possession of a controlled substance with intent to deliver

and sentenced to six years’ imprisonment.

     Defendant contends: (1) he was denied his constitutional

right to confrontation when the court allowed the prosecution to

elicit evidence regarding the co-defendant’s guilty plea; (2) the

court erred by failing to allow defense counsel to elicit the

reason for the guilty plea; (3) the statute mandating a $5 fee

for deposit in the Spinal Cord Injury Paralysis Cure Research

Trust is unconstitutional; (4) he is entitled to a $295 credit

against his mandatory drug assessment for the time he spent in
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custody; and (5) the trial court erred in imposing a $20 penalty

for the Violent Crimes Assistance Fund.

     While we agree testimony about the co-defendant’s guilty

plea violated the defendant’s sixth amendment right to

confrontation, we find the error was harmless beyond a reasonable

doubt.   We see no other error that would seriously question the

conviction.   We affirm the defendant’s conviction and sentence,

although we grant him some relief from the mandatory drug

assessment and the penalty for the Violent Crimes Assistance

Fund.

FACTS

     On July 16, 2004, at 10:50 p.m., Chicago police officer

Edward May was conducting surveillance in the vicinity of 201

South Kilpatrick Street.   He saw three different people approach

defendant and Samuel Taylor.    Defendant and Taylor were standing

within 10 feet of each other.   After each person handed defendant

an amount of money, defendant would turn around and hold his

index finger in the air to signal Taylor.   Taylor would then walk

to a flower pot near the corner, pick up a brown vial, remove an

object, and hand the object to the person who handed defendant

the money.

     After the third transaction, Officer May radioed his

partners.    Officers Bora and McGenya stopped defendant and Taylor



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and recovered a brown vial from the flower pot with twenty-six

plastic packets inside, each containing an amount of “white rocky

substance.”    A custodial search of defendant revealed $25.         The

parties stipulated that an expert in forensic science tested 15

of the 26 packets found within the vial.           The 15 packets tested

positive for the presence of cocaine.

     John Armstead, defendant’s uncle, testified on his behalf.

Armstead testified he paid defendant $25 earlier in the day for

helping him fix up an apartment.            Armstead was not present when

defendant and Taylor were arrested.           On cross-examination, the

State asked Armstead the following questions:

                 “Q.    You talk about Samuel Taylor.        He

            was your nephew as well?

                 A.    Yes, he was.

                 Q.    He was arrested with your nephew

            here, right?

                 A.    Yes.

                 Q.    And that nephew pled guilty.        Are

            you aware of that?

                 MS. MINER [defense counsel]: Objection,

            your Honor.

                 THE COURT: Overruled.

                 THE WITNESS: I am aware that he pled



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            guilty.

                 Q.   But they were both arrested at the

            same time.   Were you aware of that?   Were you

            told that?

                 A.   I was told that, too.

     On redirect, Armstead said Taylor did not appear in court on

March 24 because his car broke down during his drive from St.

Louis.   After his mother and sister picked him up, Taylor

appeared in court the next day and was immediately arrested.

When defense counsel asked whether Taylor was to be held in

custody until his trial, Armstead responded: “He plead guilty

because he told me that he had got another job.”      The trial court

sustained the State’s hearsay objection to Armstead’s response.

     The defendant testified he spent the morning on the day of

his arrest helping Armstead with landscaping and drywall in

exchange for $25.     After helping their aunt prepare for a block

party, defendant and Taylor went to a liquor store with

defendant’s brother and his brother’s girlfriend in Taylor’s car.

While defendant and Taylor were parked on the corner of Adams and

Kilpatrick, the police came up through an alley and stopped them.

The officers told them to get on their knees.      Defendant heard

the officers but remained standing.     Defendant denied ever

receiving money from people on the corner, and denied seeing



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Taylor go over to the flower pot to retrieve drugs.   The parties

stipulated to defendant’s four prior felony convictions.

     The trial court found defendant guilty of possession of a

controlled substance with intent to deliver.   Defendant was found

Class X-eligible and sentenced to six years’ imprisonment.

Defendant appeals.

DECISION

I. Right to Confrontation

     Defendant contends he was denied his constitutional right to

confrontation when the trial court allowed the State to elicit

evidence regarding Taylor’s guilty plea, in violation of Crawford

v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004).    Defendant also contends the admission of the guilty plea

violated Illinois evidentiary principles.   See People v.

Sullivan, 72 Ill. 2d 36, 377 N.E.2d 17 (1978) (“Also inadmissible

for purposes of proving the guilt of the defendant on trial, but

admissible for purposes of impeaching the co-defendant or

accomplice, is evidence that a co-defendant or accomplice has

pleaded guilty or has been convicted of the same offense.”) The

defendant does not specify which "evidentiary principles" he is

referring to.   For that reason, we focus on his constitutional

claim.

     Initially, we note defense counsel made only a general



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objection to the State’s question regarding Taylor’s guilty plea.

A general objection raises only the question of relevance.

People v. Buie, 238 Ill. App. 3d 260, 275, 606 N.E.2d 279 (1992).

Because defense counsel did not specifically object on sixth

amendment grounds, we could find the general objection resulted

in the forfeiture of the Crawford issue.    See People v. Simms,

168 Ill. 2d 176, 193, 659 N.E.2d 922 (1995) (“A general objection

results in a waiver of the claim of error unless (1) the grounds

for the objection were clear from the record, (2) trial counsel’s

assistance was ineffective, or (3) there was plain error.”)

However, we choose to consider the merits of defendant’s

contention. See People v. Roberts, 299 Ill. App. 3d 926, 931, 702

N.E.2d 249 (1998) (“[W]aiver is a bar upon the parties and not

upon the court.”)    We also observe the State does not contend in

its brief that defendant’s general objection waived the

confrontation issue.

     The sixth amendment’s confrontation clause provides that,

“[i]n all criminal prosecutions, the accused shall enjoy the

right *** to be confronted with the witnesses against him.”    U.S.

Const., amend. VI.   In Crawford, the Supreme Court held the

confrontation clause bars the “admission of testimonial

statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had a prior opportunity



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for cross-examination.”    Crawford, 541 at 68, 124 S. Ct. at 1374,

158 L. Ed. 2d at 203.

     The Court declined to specifically define what constitutes a

“testimonial” statement.    However, it gave some examples of

testimonial statements--testimony at preliminary hearings,

testimony before a grand jury or at a prior trial, in-court

guilty plea statements of co-conspirators to show existence of a

conspiracy, and statements made during police questioning,

including accomplice statements and statements against penal

interest.   Crawford, 541 at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d

at 203; People v. Thompson, 349 Ill. App. 3d 587, 594, 812 N.E.2d

516 (2004).

      No Illinois case has directly addressed whether a co-

defendant’s guilty plea should be considered a testimonial

statement under Crawford.    Illinois courts have noted, however,

that a guilty plea is tantamount to a confession.    See People v.

Hunter, 331 Ill. App. 3d 1017, 1025, 772 N.E.2d 380 (2002) (“A

judicial confession is a voluntary acknowledgment of guilt during

a judicial proceeding, such as a plea of guilty.”)    The Crawford

court specifically condemned admitting an accomplice’s or co-

defendant’s confession into evidence.    People v. Brown, 363 Ill.

App. 3d 838, 850, 842 N.E.2d 1141 (2005), citing Crawford, 541

U.S. at 63-64, 124 S. Ct. at 1371-72, 158 L. Ed. 2d at 200.



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Because a co-defendant’s confession is clearly considered

“testimonial,” we find a co-defendant’s guilty plea should also

be considered “testimonial” within the meaning of Crawford.     See

Crawford, 541 at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193;

Brown, 363 Ill. App. 3d at 850.     Defendant did not have an

opportunity to cross-examine Taylor.

     Notwithstanding, the State contends Crawford does not apply

here because the guilty plea was used merely to impeach

Armstead’s testimony, not for its truth and not as substantive

evidence of defendant’s guilt.    The State contends the

confrontation clause “does not bar the use of testimonial

statements for purposes other than establishing the truth of the

matter asserted.”   Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at

1369, 158 L. Ed. 2d at 197, citing Tennessee v. Street, 471 U.S.

409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985).     The State

notes circumstances “may be developed on cross-examination that

lie ‘within the knowledge of the witness which explain, qualify

or destroy’ the direct examination of the witness.”     People v.

Hernandez, 313 Ill. App. 3d 780, 786, 730 N.E.2d 1166 (2000).

     The State’s position in this case borders on the frivolous.

The constant repetition of the impeachment theory in the State’s

brief does little to improve its merit.     Taylor’s guilty plea did

not impeach Armstead or render his testimony implausible.



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Armstead testified he paid defendant $25 to help him remodel an

apartment.   He admitted he was not actually present when the

alleged drug transactions took place.   Taylor’s guilty plea had

absolutely no bearing on Armstead’s limited testimony.    Testimony

regarding Taylor’s guilty plea had no probative value as

impeachment of Armstead.

     Contrary to the State’s contention, the co-defendant’s

guilty plea was clearly admitted to establish the truth of the

matter asserted, namely that the co-defendant had admitted guilt

to the same crime defendant was charged with.   The guilty plea

served as direct evidence of defendant’s guilt.   As our supreme

court noted in Sullivan, “[a] defendant who is separately tried

is entitled to have his guilt or innocence determined upon the

evidence against him without being prejudged according to what

has happened to another.”   See Sullivan, 72 Ill. 2d at 42.

     Under Crawford, the admission of the testimony regarding

Taylor’s guilty plea violated the confrontation clause.    See

Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at

193; People v. Patterson, 217 Ill. 2d 407, 423, 841 N.E.2d 889

(2005); Thompson, 349 Ill. App. 3d at 593.

     Our analysis does not end here, however.   We must now

determine whether the admission of testimony regarding Taylor’s

guilty plea was harmless beyond a reasonable doubt.   See Chapman



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v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705

(1967);   Patterson, 217 Ill. 2d at 428 (“we conclude that

Crawford violations are subject to harmless-error analysis”);

People v. Sullivan, 366 Ill. App. 3d 770, 785, 853 N.E.2d 754

(2006).

     In Patterson, the supreme court recognized “three different

approaches for measuring error under this harmless-

constitutional-error test: (1) focusing on the error to determine

whether it might have contributed to the conviction, (2)

examining the other evidence in the case to see if overwhelming

evidence supports the conviction, and (3) determining whether the

improperly admitted evidence is merely cumulative or duplicates

properly admitted evidence.”   Patterson, 217 Ill. 2d at 428,

citing People v. Wilkerson, 87 Ill. 2d 151, 157, 429 N.E.2d 526

(1981).

     Here, Officer May testified he saw three different people

approach defendant and Samuel Taylor.   After each person handed

defendant an amount of money, defendant would turn around and

hold his index finger in the air to signal Taylor.    Taylor would

then walk to a flower pot near the corner, pick up a brown vial,

remove an object, and hand the object to the person who handed

defendant the money.   The officers recovered a brown vial from

the flower pot with twenty-six plastic packets inside, each



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containing an amount of “white rocky substance.”    The 15 packets

tested for narcotics indicated the presence of cocaine.    Even

without Armstead’s testimony regarding Taylor’s guilty plea,

Officer May’s testimony was more than sufficient to support the

conviction.   We find the State’s evidence in this case was

overwhelming.   See Sullivan, 366 Ill. App. 3d at 785

     We also note the State never mentioned Taylor’s guilty plea

during opening statement or closing argument.    Moreover, nothing

in the record indicates the trial court actually considered the

guilty plea in determining defendant’s guilt.    At a bench trial,

the trial judge is presumed to know the law and to consider only

proper evidence in rendering judgment.   People v. Gonzalez, 268

Ill. App. 3d 224, 231, 643 N.E.2d 1295 (1994);     People v. Todd,

154 Ill. 2d 57, 69, 607 N.E.2d 1189 (1992).

     The defendant contends the trial judge must have considered

the guilty plea evidence because he overruled the defense

objection to its admissibility.

     In People v. Alford, 111 Ill. App. 3d 741, 444 N.E.2d 576

(1982), relied on by defendant, the trial court overruled an

objection to uncharged other crimes evidence offered in a bench

trial.   This court determined the evidence was improperly

admitted.   We held reversal was required for two reasons: first,

overruling the objection meant the trial judge must have thought



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the evidence had some probative value; second, the trial court

made comments that indicated it was considering the improper

evidence.   Alford, 111 Ill. App. 3d at 744.

     In People v. Barbour, 106 Ill. App. 3d 993, 436 N.E.2d 667

(1982), cited in Alford, the trial court overruled the defense

objections to other crimes evidence and made comments that

indicated it considered highly prejudicial propensity evidence

when reaching its guilty verdict.      Barbour, 106 Ill. App. 3d at

1002.   In both Alford and Barbour it was the combination of

ruling and comment that rebutted the presumption only admissible

evidence was used to convict the defendants.     Muddying the waters

in this case is defense counsel’s failure to raise the

Confrontation Clause in its objection.     We cannot know why the

trial court overruled the objection.

     In this case, the trial court never suggested it was

considering the guilty plea evidence.     It analyzed other,

persuasive, admissible evidence when reaching its verdict.

     We find the State’s single, isolated reference to Taylor’s

guilty plea was harmless beyond a reasonable doubt.     See

Patterson, 217 Ill. 2d at 437; Sullivan, 366 Ill. App. 3d at 785.

II. Redirect Testimony

     Defendant contends the trial court erred by failing to allow

defense counsel to elicit the reason for Taylor’s guilty plea



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during Armstead’s redirect, violating his right to a fair trial.

     The scope of redirect examination is within the sound

discretion of the trial court, and its ruling will not be

disturbed absent a clear abuse of discretion resulting in

manifest prejudice to the defendant.      People v. Crisp, 242 Ill.

App. 3d 652, 658, 609 N.E.2d 740 (1992).

     In this case, when defense counsel asked whether Taylor was

to be held in custody until his trial, Armstead responded: “He

plead guilty because he told me that he had got another job.”

The trial court sustained the State’s hearsay objection.

Although defendant admits the question posed elicited a hearsay

response, he argues the court should have permitted it under the

doctrine of curative admissibility.      We disagree.

     Under the doctrine of curative admissibility, a party may

present inadmissible evidence where necessary to cure undue

prejudice resulting from an opponent’s introduction of similar

evidence.   People v. Liner, 356 Ill. App. 3d 284, 292-93, 826

N.E.2d 1274 (2005).   “The doctrine is limited in scope, is merely

protective, and goes only as far as necessary to shield a party

from unduly prejudicial inferences raised by the other side.”

Liner, 356 Ill. App. 3d at 293.

     Here, the defendant was allowed to question Armstead

concerning the circumstances leading to Taylor’s guilty plea.



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Armstead testified Taylor did not appear in court on March 24

because his car broke down during his drive from St. Louis.

After his mother and sister picked him up, Taylor appeared in

court the next day and was immediately arrested.     Taylor pled

guilty soon after.    The trial court barred defense counsel from

eliciting a purely hearsay statement from Armstead.     Defense

counsel chose not to rephrase the question or pursue the issue

further.    Even without Armstead’s hearsay response, we find the

gist of defense counsel’s questioning remained clear.     Armstead’s

response was not necessary to shield defendant from any prejudice

stemming from the admission of Taylor’s guilty plea.     See Liner,

356 Ill. App. 3d at 293.    Besides, we have held there is no

indication Taylor’s guilty plea was used by the trial court when

it convicted the defendant.

     Accordingly, in light of the record before us, we find the

trial court did not err in sustaining the State’s hearsay

objection.

III. Violent Crime Victims Assistance Fund

     Defendant contends the trial court erred in imposing a $20

fine for the Violent Crime Victims Assistance Fund.     725 ILCS

240/10(c)(2) (West 2004).    According to the section imposing the

fine, the fine may be assessed only when no other fines have been

imposed.    725 ILCS 240/10(c)(2) (West 2004).   The State agrees



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that this court should vacate the fine because other fines, such

as the drug assessment fine and Trauma Fund Fine, were assessed

on the defendant.    We agree.   Accordingly, we vacate the $20

Violent Crime Victims Assistance Fund fine.

IV. Credit Against Mandatory Drug Assessment

     The defendant and the State agree he is entitled to a $295

credit against his controlled substance assessment fine for the

time he spent in custody prior to sentencing.     Defendant was

assessed a $1000 drug assessment fine.     720 ILCS 570/411.2(I)

(West 2004).   Pursuant to section 110-14 of the Code of Criminal

Procedure, defendant should receive a credit of $5 per day for

the 30 days he spent in custody prior to sentencing, as long as

that amount does not exceed the amount of fines imposed.     725

ILCS 5/110-14(a) (West 2004).     The credit applies to the drug

assessment fine.     People v. Jones, 233 Ill. 2d 569, 592, 861

N.E.2d 967 (2006).    Accordingly, we order that the fees and costs

order be modified to reflect a $295 credit towards defendant’s

drug assessment fine.

V. Spinal Cord Fund Fee

     Defendant has abandoned his constitutional challenge to the

$5 charge payable to the Spinal Cord Injury Paralysis Cure

Research Trust Fund (730 ILCS 5/5-9-1.1(c) (West 2004)) following

the supreme court’s decision in Jones, 223 Ill. 2d at 605,



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finding the statute constitutional.    We do not disturb the trial

court’s imposition of the $5 charge.

CONCLUSION

     We affirm the trial court’s judgment.   We vacate the $20

Violent Crime Victims Assistance Fund fine, and we modify the

fees and costs order to reflect a $295 credit towards defendant’s

drug assessment fine.

     Affirmed in part, vacated in part, and modified.

     HOFFMAN, and HALL, JJ., concur.




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