No. 1-03-3036

                                                                     FIRST DIVISION
                                                                     FILED: 9-28-07

THE PEOPLE OF THE STATE OF ILLINOIS,                          )     Appeal from the
                                                              )     Circuit Court of
                               Plaintiff-Appellee,            )     Cook County.
                                                              )
       v.                                                     )     No. 90 CR 12896
                                                              )
EFREN MELCHOR,                                        )       Honorable
                                                              )     Fred G. Suria,
                               Defendant-Appellant.           )     Judge Presiding.

       JUSTICE ROBERT E. GORDON delivered the opinion of the court:

       Defendant Efren Melchor was convicted after a jury trial of first degree murder and

sentenced to 40 years’ imprisonment. On appeal, this court reversed his conviction, holding that

defendant’s sixth amendment right to confrontation was violated when the trial court admitted the

former testimony of Luis Ortiz, who was the sole eyewitness to identify defendant as the shooter.

Ortiz had previously testified about the murder at the trial of a codefendant but had died prior to

defendant’s trial. People v. Melchor, 362 Ill. App. 3d 335 (2005) (unpublished in part pursuant to

Supreme Court Rule 23).

       The Illinois Supreme Court vacated the judgment of the appellate court on the ground that

the appellate court should have first considered the nonconstitutional issues before proceeding to

rule on the constitutional one. People v. Melchor, 226 Ill. 2d 24, 34-35 (2007), citing In re E.H.,

224 Ill. 2d 172, 178 (2006). The supreme court remanded the case to the appellate court with

instructions that this court answer two questions. Melchor, 226 Ill. 2d at 34-35. First, this court
No. 1-03-3036

must determine “whether the trial court erred in ruling that Ortiz’s testimony was admissible

pursuant to section 115-10.4 of the Code of Criminal Procedure (725 ILCS 5/115-10.4 (West

2004)).” Melchor, 226 Ill. 2d at 35. Second, “[i]f the trial court’s evidentiary ruling was

erroneous, the next question is whether the error was harmless.” Melchor, 226 Ill. 2d at 35. The

supreme court instructed that “[o]nly if the trial court’s section 115-10.4 ruling was not

erroneous, or was erroneous but harmless as an evidentiary matter, should the appellate court turn

to the constitutional challenge.” Melchor, 226 Ill. 2d at 35.

                                         BACKGROUND

       On April 30, 1990, Steven Botello (the victim) was shot to death at 2624 West Fullerton

in Chicago. On May 6, 1990, defendant and codefendant Ancermo Paredes were arrested for the

murder and were identified in a lineup as being involved in the shooting. Both were later indicted

on two counts of murder. On May 15, 1990, defendant was released on bond and then failed to

appear on several subsequent court dates. On October 2, 1990, his bond was forfeited and a

warrant for his arrest was issued. Defendant remained a fugitive for the next 10 years.

       On May 15, 1991, the bench trial of the codefendant began. The witnesses included the

codefendant, who testified on his own behalf, and Luis Ortiz, who was the sole eyewitness to the

shooting and 16 years old at the time of the shooting. Ortiz’s testimony implicated both the

codefendant and defendant. On May 20, the trial court found codefendant not guilty, and he was

subsequently deported to Mexico. On September 11, 1998, Ortiz died as a result of a drug

overdose.

       On October 15, 2000, defendant was again arrested. Prior to defendant’s trial the State


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No. 1-03-3036

indicated its intent to use Ortiz’s and codefendant’s testimony from codefendant’s trial because

both were unavailable. Defendant moved to bar the State from using their testimony, claiming

that their use would violate his confrontation rights and that the prior testimony, particularly that

of Ortiz, did not bear sufficient guarantees of trustworthiness.

       After a hearing, at which the State confirmed that Ortiz was the sole eyewitness to the

shooting, the trial court denied the defendant’s motion to bar and found Ortiz’s prior testimony

admissible pursuant to section 115-10.4 of the Code of Criminal Procedure of 1963 (725 ILCS

5/115-10.4 (West 2004)). However, the trial court denied the State’s request to use the

codefendant’s prior testimony.

       Defendant’s jury trial began on March 18, 2003. Julio Diaz, who was 30 years old at the

time of defendant’s trial, testified that on April 29, 1990, from approximately 9 a.m. to midnight,

he was playing basketball in Haas Park at Fullerton and Washentaw Avenues with Ortiz, the

victim and “Tootie.” According to Diaz, the group shared a quart of beer.

       Dias testified that, at approximately 11:30 p.m., the group left the park and were walking

down Fullerton to purchase more beer. At this time, they saw four Hispanic males coming in their

direction on the same side of the street, none of whom Diaz recognized. Tootie said he was going

to “mess with” them. A brawl ensued. Jamie Figueroa, who was also deceased at the time of

defendant’s trial, and Mario Lopez joined the fight. After approximately 10 minutes, the fight

broke up because the victim yelled that the police were coming.

       Diaz testified that he and Figueroa hid in a viaduct for a few minutes after the fight broke

up and then went to a pay phone. At this time, Ortiz and the victim were also there. The group


                                                  3
No. 1-03-3036

then walked to the intersection of Fullerton and California Avenues, where the victim left the

group to visit his daughter who lived near the intersection. Approximately 10 minutes later, the

victim returned. As the victim was walking toward them, Diaz observed a two-door gray Toyota

hatchback automobile attempt to smite the victim. Diaz also observed four individuals in the

automobile and recognized at least one of them as one of the men his group had been fighting

with earlier. Diaz identified this man as the codefendant.

       Diaz testified that the group then started walking eastbound on Fullerton toward a tavern.

Diaz left the group to go to a nearby school playground. While there, Diaz heard two sounds that

sounded like firecrackers. He alighted on his bicycle and rode toward Fullerton. He saw a squad

car and the victim on the ground. At this point, he thought that the squad car had hit the victim.

Diaz then rode the bike to a nearby gas station, purchased two hot dogs, and rode back to the

scene of what he believed to be an accident. The victim was still lying on the street and, at this

time, he found out that the victim had been shot. On cross-examination, he admitted that he never

observed the person who actually shot the victim.

       Diaz testified that he was a member of a gang and that Ortiz, the victim, Figueroa, Lopez

and Tootie were also in the same gang. Diaz also stated that the four Mexicans were not in a

gang because “you could tell,” and that the fight did not start as a result of gang rivalry.

       Christopher Donnelly, who had been the assistant State’s Attorney who prosecuted the

codefendant back in 1991, took the stand at defendant’s trial and read aloud Ortiz’s testimony

from the codefendant’s trial. Ortiz’s testimony regarding the fight and attempted hit-and-run was

basically consistent with Diaz’s testimony. Ortiz testified that there were four individuals in the


                                                  4
No. 1-03-3036

car and that he saw the faces of two of them. Ortiz recognized the codefendant, as one of the

individuals whom he had seen earlier that night in the fight. Ortiz also saw the shooter, whom he

later identified as the defendant.

        Ortiz testified that he, Diaz, the victim and Figueroa then walked eastbound on Fullerton.

When they were in front of the tavern, Ortiz stopped and spoke to some friends. Diaz left on a

bicycle to go to Gatither Park. The victim borrowed a bicycle and left because he had left his

wallet at the park. Ortiz observed the victim looking for his wallet, when a small gray automobile

pulled into the parking lot by the park. Ortiz recognized the automobile as the one that had tried

to run over the victim earlier. The passenger side door opened; a man got out, reached over the

roof of the car, and shot the victim. The shooter then got back in the automobile and it drove off.

        Ortiz testified that on May 6, 1990, he went to Chicago police Area 5 headquarters and

viewed a lineup. Out of the four-person lineup, he identified two individuals. He identified the

codefendant as one of the individuals with whom he had been fighting and defendant as the

shooter, who was not someone who had been involved in the fight. Ortiz also identified both

individuals as passengers in the grey Toyota. On cross-examination, Ortiz gave varying distances

between himself and the car at the time of the shooting, ranging from between 5 and 100 feet.

        Chicago police detective Reynaldo Guevara testified that, shortly after the shooting, he

arrested the defendant and codefendant. Detective Roland Palinsky testified that on May 6, 1990,

at approximately 1 a.m., he conducted a four-person lineup that included defendant, defendant’s

brother and codefendant. Detective Palinsky testified that Ortiz viewed the lineup and identified

defendant as the shooter and codefendant as a passenger.


                                                 5
No. 1-03-3036

        The defense case included the testimony of: Nicholas Roman, defendant’s work

supervisor at the time of the murder; Renaldo Melchor Santana, defendant’s brother; and

defendant himself. Nicholas Roman, who was 50 years old, testified that he was working with

defendant at the time of the murder. In April 1990, Roman was the second-shift supervisor of

dishwashers and kitchen cleanup at a Streeterville-area restaurant, and defendant worked under

him. Roman told the police that, on April 29, 1990, defendant began work between 1 and 1:30

p.m. and worked until approximately 1 a.m. Roman testified that he, defendant and Angel

Castillo all left work at the same time, proceeding to the basement to change their clothes.

        Roman was shown defendant’s time card, which indicated that defendant punched in at 4

or 4:30 p.m. and punched out at 10:06 p.m. Roman explained that defendant punched out only

for a 30-minute break and was unable to punch back in because the time clock was broken, as it

frequently was. Roman and defendant worked together for approximately two years and were

solely work acquaintances. Roman had not been in contact with defendant after his arrest in

1990.

        Renaldo Melchor Santana, defendant’s brother, testified that on May 5, 1990, he was in a

bar where he saw codefendant, whom he recognized because they lived in the same building.

Defendant later came to the bar to get Reynaldo. At this time, codefendant was arrested.

According to Reynaldo, approximately one-half hour later, he, defendant, and two other

individuals were also arrested. Reynaldo and defendant were both placed in a lineup. Thereafter,

Reynaldo was allowed to leave the police station, but defendant was not.

        Defendant testified that in April 1990, he worked as a dishwasher at a Streeterville-area


                                                 6
No. 1-03-3036

restaurant with his supervisor, Nicholas Roman. On April 29, 1990, defendant worked from 1

p.m. until approximately 12:30 a.m. He left work with Roman and others, changing clothes in the

basement. He did not remember if he punched out that night, and he thought that he had taken a

break at around 10 p.m. He took two different el trains home, which took approximately 20 or

30 minutes.

       Defendant testified that he knew codefendant because they lived in the same building, but

they socialized only occasionally. Defendant denied owning a gun or a grey Toyota automobile

and denied being a passenger in a grey Toyota on April 29 or 30, 1990. Defendant denied

shooting anyone during that time or belonging to a gang.

       Defendant testified that on May 5, 1990, he went to a bar to look for his brother. At

approximately 12:30 a.m., the police arrived and arrested both him and his brother. Defendant

testified that he did not know what was going on. Defendant did not remember the date he made

bail but admitted he knew he had to come back to court. He failed to appear because his brother

had been threatened by gang members and believed that defendant would have been killed if he

had appeared in court. From 1990 to 2000, defendant moved often, worked at restaurants and

was paid in cash.

       After the jury found defendant guilty of first degree murder, he filed a timely motion for a

new trial, in which he alleged that the trial court erred in: (1) admitting Ortiz’s testimony; (2)

refusing to allow defendant to impeach Ortiz’s testimony with a robbery charge that was pending

at the time of codefendant’s trial; and (3) refusing to allow defendant to impeach Ortiz’s

testimony with a 1994 conviction for armed robbery. The trial court denied his motion.


                                                  7
No. 1-03-3036

       After a sentencing hearing, the trial court sentenced defendant to a prison term of 40

years. Defendant timely appealed. On May 14, 2003, defendant pled guilty to bail jumping. He

was sentenced to 13 years’ imprisonment for that offense, to run consecutive to his sentence for

murder.

       The appellate court reversed, holding that the admission of Ortiz’s testimony, violated

defendant’s sixth amendment right of confrontation, pursuant to Crawford v. Washington, 541

U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and that this error was not harmless. The

appellate court also held that the defendant did not forfeit his confrontation clause claim by his

own wrongdoing, namely, his bail jumping. The appellate court reversed defendant’s conviction

and remanded to the trial court for a new trial.

       The Illinois Supreme Court vacated the judgment of the appellate court and remanded to

the appellate court with instructions to first consider the nonconstitutional issues before

proceeding to rule on the constitutional issues.

                                            ANALYSIS

       The Illinois Supreme Court has remanded this case to this court with instructions that we

determine: first, whether the trial court erred in ruling that Ortiz’s testimony was admissible

pursuant to the dead man’s exception (725 ILCS 5/115-10.4 (West 2004)) to the hearsay rule;

and second, if the trial court’s hearsay ruling was error, whether that error was harmless.

Melchor, 226 Ill. 2d at 35. Only if the ruling was not error or the error was harmless may we

proceed to the consideration of the sixth amendment issue. Melchor, 226 Ill. 2d at 35.

                                         Hearsay Exception


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No. 1-03-3036

       The rule against hearsay generally prevents the introduction at trial of out-of-court

statements offered to prove the truth of the matter asserted. People v. Murdock, 259 Ill. App. 3d

1014, 1024 (1994). However, the rule has many exceptions. Section 115-10.4 (725 ILCS 5/115-

10.4 (West 2004)) provides a statutory exception to the hearsay rule, for the prior testimony of a

dead man. It states in pertinent part:

                       “(a) A statement not specifically covered by any other

                hearsay exception but having equivalent circumstantial guarantees

                of trustworthiness is not excluded by the hearsay rule if the

                declarant is deceased and the court determines that:

                       (1) the statement is offered as evidence of a material fact;

                       (2) the statement is more probative on the point for which it

                is offered than any other evidence which the proponent can procure

                through reasonable efforts;

                       (3) the general purposes of this Section and the interests of

                justice will best be served by admission of the statement into

                evidence.

                                                ***

                       (d) Any prior statement that is sought to be admitted under

                this Section must have been made by the declarant under oath at a

                trial, hearing or other proceeding and been subject to cross-

                examination by the adverse party." 725 ILCS 5/115-10.4 (West


                                                  9
No. 1-03-3036

                2006).

In sum, with respect to a dead man’s prior testimony, this section requires a court to consider (1)

materiality (725 ILCS 5/115-10.4(a)(1) (West 2006)); (2) probative value (725 ILCS 5/115-

10.4(a)(2) (West 2006)); (3) trustworthiness of the statement (725 ILCS 5/115-10.4(a)) (West

2006)); (4) interests of justice (725 ILCS 5/115-10.4(3) (West 2006)); and (5) prior opportunity

for cross-examination (725 ILCS 5/115-10.4(d) (West 2006).

       The standards of review for these five requirements are not the same. “Reviewing courts

sometimes state, as a blanket rule, that all evidentiary rulings are reviewed deferentially.”

(Emphasis in original.) People v. Drum, 321 Ill. App. 3d 1005, 1009 (2001); People v. Purcell,

364 Ill. App. 3d 283, 293 (2006) (“[g]enerally” abuse of discretion standard applies to evidentiary

rulings). However, “the abuse-of-discretion standard is only a general rule [citation], and

important exceptions exist.” (Emphasis in original.) Drum, 321 Ill. App. at 1009; Purcell, 364 Ill.

App. 3d at 293 (“evidentiary rulings are occasionally reviewed de novo”). For example, the

statute at issue, section 115-10.4, requires that the witness was “subject to cross-examination by

the adverse party.” 725 ILCS 5/115-10.4 (d) (West 2004). The question of “whether the witness

is subject to cross-examination [] do[es] not involve the trial court’s discretion and accordingly

[is] reviewed de novo.” Drum, 321 Ill. App. at 1009 (discussing similar requirement in section

115.10.1). By contrast, the remaining four requirements of materiality, probative value,

trustworthiness and interests of justice do “depend[] on the context in which the statement is

offered at trial” and thus are subject to discretionary review. Drum, 321 Ill. App. at 1009

(inconsistency for purposes of prior inconsistent statement depends on “context”); People v.


                                                  10
No. 1-03-3036

Brown, 303 Ill. App. 3d 949, 961 (1999) (trial court’s determination that a hearsay statement was

trustworthy under section 115-10.2 “will not be disturbed absent an abuse of discretion”). 1 “A

trial court abuses its discretion only when its ruling is " ‘ " ‘arbitrary, fanciful *** or " ‘where no

reasonable man would take the view adopted by the trial court.’ " ‘ ” [Citations.] People v.

Santos, 211 Ill. 2d 395, 401 (2004).

        The fifth requirement, opportunity for cross-examination, was not in effect at the time of

defendant’s trial. On June 17, 2005, an amendment to section 115-10.4 was approved that added

the following language to the end of paragraph (d): “and been subject to cross-examination by

the adverse party.” Pub. Act. 94-0053, eff. June 17, 2005. This change took effect on June 17,

2005, and was not in effect at defendant’s jury trial which began on March 18, 2003. Melchor,

362 Ill. App. 3d at 342, vacated on other grounds by Melchor, 226 Ill. 2d at 27. Thus, this court


        1
            In his brief to this court, defendant claimed that the standard of review for the fourth

requirement, trustworthiness, was de novo. In support of this claim, defendant cited two cases:

In re D.G., 144 Ill. 2d 404, 408-09 (1991), and People v. Garriott, 253 Ill. App. 3d 1048, 1050

(1993). In Garriott, this court held that de novo review applied to the question of “whether a

defendant’s refusal to submit to a breathalyzer test, after an arrest for DUI on private property, is

admissible at trial.” Garriott, 253 Ill. App. 3d at 1049. In D.G., we stated with respect to de

novo review that “where neither the facts nor credibility of the witnesses is contested, the issue of

whether probable cause exists is a legal question which a reviewing court may consider de novo.”

D.G., 144 Ill. 2d at 408-09. Neither case is on point.



                                                     11
No. 1-03-3036

will analyze only the first four requirements, which were in effect at the time of defendant’s trial,

and will analyze them under an abuse-of-discretion standard.

       The trial court did not abuse its discretion in finding that the first two requirements,

materiality and probative value, were satisfied; and defendant does not claim otherwise. First, the

statute requires the statement to be "evidence of a material fact.” 725 ILCS 5/115-10.4(a)(1)

(West 2004). The statement at issue, namely Ortiz’s prior testimony, established the fact that

defendant was the shooter. The identity of the sole gunman is clearly material to a murder trial.

       Second, the statute requires that the evidence be “more probative on the point for which it

is offered than any other evidence which the proponent can procure through reasonable efforts.”

725 ILCS 5/115-10.4(a)(2) (West 2004). Ortiz’s testimony was more probative as to the

shooter’s identity than any other evidence offered, since he was the sole eyewitness to identify the

shooter. Ortiz testified that a grey automobile pulled into a parking lot by a park late at night, and

then a man exited the passenger side door, reached over the roof of the automobile and shot the

victim. At a lineup, Ortiz identified defendant as the shooter and codefendant as another

individual in the automobile.

       The trial court did not abuse its discretion in finding that Ortiz’s testimony was more

probative as to the shooter’s identity than any other evidence that the State could reasonably

procure. 2 The record indicates that there were five people on the scene at the time of the shooting


       2
           The trial court ruled: “It is absolutely clear from both sides that the evidence offered by

Mr. Ortiz [sic] there is no other person that either side is aware of who can give the testimony

that he would give were he present.”

                                                   12
No. 1-03-3036

other than the victim: four people in the shooter’s automobile and Ortiz. Of the four people in

the automobile, Ortiz identified only two: defendant as the shooter and codefendant as a

passenger. Thus, the only identified eyewitness to the shooting besides Ortiz was codefendant,

and during the time that defendant was a fugitive, codefendant had been tried, acquitted and

deported to Mexico. In addition, the trial court ruled that the codefendant’s prior testimony was

inadmissible as untrustworthy.

       The third statutory requirement is trustworthiness. The statute requires the statement to

have “circumstantial guarantees of trustworthiness.” This court has held that this trustworthiness

requirement limits the dead man’s exception “to exceptional circumstances.” People v. Smith,

333 Ill. App. 3d 622, 634 (2002).

       To evaluate trustworthiness, a trial court must consider “the totality of the circumstances

surrounding the declaration.” Smith, 333 Ill. App. 3d at 638. In Smith, this court listed a number

of factors that a trial court could consider, without holding that consideration of any one factor

was required or dispositive. Smith, 333 Ill. App. 3d at 635-38.

       We did hold that a “significant factor” was whether the prior statement had been subject

to cross-examination. Smith, 333 Ill. App. 3d at 637.3 Thus, even though the statute had not yet

been amended to include this requirement explicitly, Illinois courts were already considering it as a


       3
           In Brown, this court held, with respect to a different hearsay exception, that the

opportunity to cross-examine the declarant was a significant factor in analyzing “the

trustworthiness of a hearsay statement.” Brown, 303 Ill. App. 3d at 961 (discussing section 115-

10.2 of the Code of Criminal Procedure (735 ILCS 5/115-10.2).

                                                   13
No. 1-03-3036

factor in their trustworthiness analysis.4 Cross-examination was relevant to analyzing

trustworthiness because cross-examination provided an “opportunity for testing the truth” of the

statement. Smith, 333 Ill. App. 3d at 637. In the case at bar, there is no dispute that defendant

did not cross-examine Ortiz.

       Before cross-examination became a statutory requirement, its lack did not automatically

bar a dead man’s statement as untrustworthy. Smith, 333 Ill. App. 3d at 637. Instead, the

question was what issues could cross-examination have successfully “explored.” Smith, 333 Ill.

App. 3d at 637.

       One issue that cross-examination explores is the witness’s credibility. Credibility is


       4
           Judge Wolfson in a special concurrence takes issue with our precedent that included the

opportunity for cross-examination as part of our trustworthiness analysis. However, it is hard to

dispute that cross-examination has historically been the primary vehicle by which advocates have

tested the trustworthiness of statements. Crawford v. Washington, 541 U.S. 36, 61, 158 L. Ed. 2d

177, 199, 124 S. Ct. 1354, 1376 (2004) (reliability is best determined “by testing in the crucible of

cross-examination”). This court takes no position on whether the statute is unconstitutional on its

face after Crawford, as the concurring judge concludes, except to note that Crawford applies only

to testimonial statements and many statements permitted by this exception would still be admitted

under Crawford as nontestimonial statements. Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 198,

124 S. Ct. at 1370 (applied only to “testimonial” statements). In addition, the Crawford Court

noted that there may be an exception to its holding for “dying declarations.” Crawford, 541 U.S.

at 55 n.6, 158 L. Ed. 2d at 195, 124 S. Ct. at 1367.

                                                  14
No. 1-03-3036

evaluated primarily based on the witness’s physical reaction to the questions, such as demeanor

and tone of voice. Samour, Inc. v. Board of Election Commissioners of the City of Chicago, 224

Ill. 2d 530, 548 (2007) (fact finder evaluates credibility based on “conduct and demeanor”); Best

v. Best, 223 Ill. 2d 342, 350 (2006) (same). That is why our system favors live testimony and

defers to the fact finder, who can observe witnesses firsthand. Best, 223 Ill. 2d at 350 (reviewing

court defers to fact finder “because it is in the best position to observe the conduct and

demeanor”); Samour, 224 Ill. 2d at 548 (same); Vicencio v. Lincoln-Way Builders, Inc., 204 Ill.

2d 295, 310 (2003) (“strong preference for live testimony”).

       At the bench trial of codefendant, Ortiz was alive, 16 years old and subjected to cross-

examination. He was the sole eyewitness to the shooting, implicating both codefendant and

defendant – and yet the trial court acquitted codefendant. The inference is strong that when the

fact finder could view Ortiz on the stand, watching his body language and listening to his tone of

voice, as opposed to simply hearing a dead transcript read into the record, the fact finder did not

believe him.

       By contrast, during defendant’s trial, Ortiz’s answers were read into the record by the

State prosecutor,5 who subsequently became a judge. After listening to the same answers that had

previously led to an acquittal, the jury voted to convict.

       Ortiz’s credibility was the key issue. He was the only link between defendant and the

crime. The court offered no physical evidence, such as fingerprints on a murder weapon; no


       5
           Ortiz’s answers were read into the record at defendant’s trial by Christopher Donnelly,

who had been the assistant State’s Attorney at the prior trial of codefendant..

                                                  15
No. 1-03-3036
statements by defendant; and no other witnesses linking defendant to the crime.

        This court is not saying that live testimony is always required. The facts of this case are

unique. Immediately after ruling to admit Ortiz’s prior testimony, the trial court remarked: “It is

a unique case. I never had one in my 40 years on the bench like this.” The facts are unique

because Ortiz’s credibility was key, Ortiz was dead, and his live testimony had previously led to

an acquittal.

        In finding that codefendant’s prior testimony was trustworthy, the trial court

distinguished the Smith case. In Smith, we held that the grand jury testimony of a dead man was

inadmissible as untrustworthy. Smith, 333 Ill. App. 3d at 638. The trial court in the case at bar

distinguished Smith on the ground that in Smith there had been no opportunity for cross-

examination, whereas “here there was cross-examination” by codefendant. However,

codefendant’s opportunity to cross-examine is not the same as the opportunity for defendant,

where the motives of defendant and codefendant were not aligned. People v. Brown, No. 1-05-

0995, slip op. at 14 (prior statement at bond hearing was not trustworthy where “defense counsel

did not have a similar motive for cross-examining *** at the bond hearing as he would have had

for cross-examination at trial”). Codefendant had every incentive to shift culpability away from

himself and to defendant.

        In addition to credibility, there were other issues that cross-examination could have

explored. At codefendant’s trial, codefendant’s attorney did not ask a single question on cross-

examination concerning: the witness’ gang membership, the lineup identification of defendant, the

witness’ admitted consumption of alcohol, any desire for vengeance because the victim was a


                                                 16
No. 1-03-3036
member of the same gang as the witness, or any expectations of leniency with respect to the

witness’ pending robbery charge in juvenile court.

        In addition to lack of cross-examination, other factors of untrustworthiness include: (1)

the witness’ “motivation to testify falsely”; (2) the witness’ prior convictions and criminal history;

(3) the witness’ use of drugs or alcohol at the time of the events; and (4) the witness “hopes of

making a deal.” Smith, 333 Ill. App. 3d at 637. With respect to motive, the trial court found

Ortiz’s prior testimony trustworthy primarily because Ortiz, as a friend of the victim, had a motive

to see the murderer “called to the bar of justice.”6 However, the last three factors point to the

untrustworthiness of Ortiz’s prior testimony.

        First, the witness’ felony conviction militated against a finding of trustworthiness. By the

time Ortiz died at a young age of a drug overdose, he had 15 adult arrests and one felony

conviction for armed robbery. He had used five different aliases and four different birth dates.

The trial court did not consider the felony conviction relevant to the issue of Ortiz’s credibility

because it occurred after the testimony in question was given. 7 However, in Smith, we found that


        6
            The trial court ruled: “As to the reliability or trustworthiness, I have to say human nature

in my humble judgment is if I have a friend who is killed, I want to see the person who did the

killing called to the bar of justice. It would serve no purpose to point someone else out who is

not the shooter ***.”
        7
            The trial court found that the armed robbery conviction was not material to the issue of

Ortiz’s credibility “because it has no effect upon the original identification of the defendant in this

case.” Ortiz was arrested in 1994 and pled guilty in 1995 to armed robbery. He testified at the

                                                    17
No. 1-03-3036
the witness’ “alleged theft of a car at the time of his death affected his credibility negatively.”

Smith, 333 Ill. App. 3d at 636. The theft, which was only alleged without a conviction, occurred

after the statement in question was made, and yet this court still found it to be a relevant factor in

its Section 5/115-10.4 trustworthiness analysis. Similarly, Ortiz’s long criminal history, although

occurring after the statement, points to the statement’s untrustworthiness.

        Second, the 16-year-old witness admitted consuming alcohol prior to witnessing the

shooting. Third, he may have had hopes of making a deal. To rebut this suggestion, the person

who had been the State prosecutor at codefendant’s trial testified at defendant’s trial that he did

not make any promises of leniency and that he was not even aware of Ortiz’s pending robbery

charge in juvenile court.

        However, the issue is not the state of mind of the prosecutor but that of the witness. In

Smith, no promises had been made to the witness there either, but the court still considered it a

relevant factor in its trustworthiness analysis, because the witness could still have “hopes of

making a deal.” Smith, 333 Ill. App. 3d at 637. Similarly, in the case at bar, although the

prosecutor had not made any offers, Ortiz could still have harbored hopes of currying favor with

the State.

        Thus, in sum, this court finds Ortiz’s prior testimony was untrustworthy because of: the

lack of cross-examination where his testimony was the only link between defendant and the crime;

his felony convictions and criminal history; his use of alcohol at the time of the events; and his

possible hopes of currying a favor with the State in light of his pending robbery charge.


codefendant’s trial in 1991.

                                                   18
No. 1-03-3036
          The question then becomes whether defendant has the right to challenge the testimony’s

untrustworthiness, when it was his own time as a fugitive which prevented him from having the

opportunity to cross-examine Ortiz. Recently, the Illinois Supreme Court held that the doctrine

of forfeiture of wrongdoing requires “intent.” People v. Stechly, 225 Ill. 2d 246, 277 (2007).

The Supreme Court stated: “[W]e hold that the State must prove that the defendant intended by

his actions to procure the witness’ absence to invoke the doctrine of forfeiture by wrongdoing.”

Stechly, 225 Ill. 2d at 277. Defendant’s act of skipping bail and failing to appear at trial, although

wrongful, was not aimed at intentionally procuring Ortiz’s absence at a future trial. Defendant

had no way of knowing that Ortiz would die at a young age of a drug overdose in the intervening

years while defendant was a fugitive. Thus, the doctrine of forfeiture of wrongdoing does not

apply.8

          Since we have found that the prior testimony was untrustworthy, we need not discuss the

fourth requirement of section 115-10.4: “the interests of justice.” 735 ILCS 5/115-10.4(a)(3).

We have now answered in the affirmative the first question that the supreme court posed to us:

“whether the trial court erred in ruling that Ortiz’s testimony was admissible” pursuant to the

dead man’s exception to the hearsay rule. Melchor, 226 Ill. 2d at 35. Having answered that


          8
              Justice Burke had reached the same conclusion. She stated: “Ortiz’s death from a drug

overdose is not a logical outgrowth, forseeable result, or legitimate consequence of defendant’s

flight. *** [Thus,] defendant’s conduct in escaping prosecution for 10 years did not constitute

misconduct sufficient to invoke the forfeiture by wrongdoing rule.” Melchor, 362 Ill. App. 3d at

355, vacated on other grounds, Melchor, 226 Ill. 2d at 27.

                                                   19
No. 1-03-3036
question in the affirmative, we now proceed to the second question: “whether that error was

harmless.” Melchor, 226 Ill. 2d at 35.

         An error is harmless if “the result would have been the same absent the error.” People v.

Nitz, 219 Ill. 2d 400, 410 (2006). To determine whether an error was harmless, this court must

consider: (1) whether the error “might have contributed to the conviction”; (2) whether other

evidence is so “overwhelming” as to support the conviction; and (3) whether the erroneously

admitted evidence is “cumulative or merely duplicates properly admitted evidence.” People v.

Thompson, 349 Ill. App. 3d 587, 594 (2004).

         First, the error was very likely to have contributed to the conviction, since Ortiz was the

only person to connect defendant to the crime.9 Second, the other evidence was not

overwhelming. There was no physical evidence linking defendant to the crime. The other

evidence consisted primarily of defendant’s flight from justice and the detective’s description of

the lineup at which Ortiz identified defendant. While flight provides some evidence of

consciousness of guilt, it is far from overwhelming, and the detective’s testimony concerning

Ortiz’s identification would have had little meaning by itself if Ortiz’s testimony had not first been

read into the record. Third, Ortiz’s testimony was not cumulative, since he was the sole

eyewitness to identify defendant as the shooter. Thompson, 349 Ill. App. 3d at 594 (admission

of the victim’s statements was not harmless error where the only evidence admitted at trial “to

identify defendant as [victim’s] attacker” were her statements and defendant’s stationhouse



         9
             The trial court found that “[i]t is true that this is basically a single-finger identification
case.”

                                                        20
No. 1-03-3036
confession). Thus, the error was not harmless.10

       Since we have found both that the prior testimony did not satisfy the requirements of the

hearsay exception and that this error was not harmless, there is no need for us to proceed to an

analysis of the defendant’s confrontation clause claim.

                                            CONCLUSION

       For the foregoing reasons, we reverse defendant’s conviction, vacate his sentence, and

remand this case for a new trial.

       GARCIA, J., concurs.

       WOLFSON, J., specially concurring.




       10
            Justice Burke also found that the introduction of Ortiz’s testimony into defendant’s trial

was not a harmless error. Melchor, 362 Ill. App. 3d at 355, vacated on other grounds by

Melchor, 226 Ill. 2d at 27.

                                                   21
No. 1-03-3036
JUSTICE WOLFSON, specially concurring:

        I do not see how we can decide this case without holding section 115-10.4, as it existed at

the time of trial, was unconstitutional on its face. The legislature recognized that Crawford v.

Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), nullified the statute, which

was amended to include the Crawford requirement of a prior opportunity of the defendant to

cross-examine the testimonial declarant. Instead, the majority treats the former statute as if it

included a cross-examination requirement. It did not, and we should not pretend it did.

        I agree with the majority's analysis of the right of the defendant to cross-examine. I agree

that the defendant's right to cross-examine his accuser was violated in this case. But my

agreement is based on the sixth amendment, not on some provision we might engraft on a patently

unconstitutional statute.

        I have no disagreement with the Illinois Supreme Court's instruction that nonconstitutional

issues should get first consideration. Melchor, 226 Ill. 2d at 34-35. I just do not see how we can

do that in this case.

        In short, I agree with the majority's conclusion that the defendant's conviction should be

reversed, but not the path it used to get there.




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