                                                       SIXTH DIVISION
                                                       June 22, 2007



No. 1-05-0995

THE PEOPLE OF THE STATE OF ILLINOIS,       )      Appeal from the
                                           )      Circuit Court of
          Plaintiff-Appellee,              )      Cook County
                                           )
     v.                                    )
                                           )
HENRY BROWN,                               )      Honorable
                                           )      Marjorie Laws,
          Defendant-Appellant.             )      Judge Presiding


     JUSTICE McNULTY delivered the opinion of the court:

     This case comes before us for a second time.      The first

appeal resulted in a remand for a new trial.      On retrial a jury

found defendant, Henry Brown, guilty of the aggravated kidnaping

and aggravated battery of Gaddis Johnson.      Defendant now argues

that section 115-10.4 of the Code of Criminal Procedure of 1963

(the Code) (725 ILCS 5/115-10.4 (West 2004)) did not authorize

the introduction into evidence of testimony Johnson gave at

defendant's bond hearing.    We agree with defendant and therefore

we reverse the conviction and again remand for a new trial.

                             BACKGROUND

     On March 8, 1995, two persons came to the apartment Johnson

shared with his sister and her children.       Johnson left with the

two persons.    Johnson returned home two days later.    Burn marks

and other wounds covered much of Johnson's body.      Following

discussions with Johnson, police arrested defendant.      The court
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released defendant on a bond of $125,000, conditioned on an order

not to contact Johnson or his family.

     Prosecutors petitioned for a hearing on violation of bail

bond, alleging that defendant contacted Johnson and that

defendant possessed heroin.     At the hearing, begun on August 9,

1996, Johnson testified in great detail, over a continuing

relevancy objection, about the kidnaping and battery.     He also

swore that defendant contacted him and offered him cash and

cocaine in exchange for testimony favorable to defendant.

     The court delayed cross-examination of Johnson until August

13, 1996.    Defense counsel limited his cross-examination to the

testimony regarding defendant's contact with Johnson after

defendant's release on bond.     When the court excused Johnson, the

prosecutor asked, "Judge, is counsel waiving his right to

complete a meaningful cross of Mr. Johnson?"     The attorneys

discussed with the court the ramifications of the question:

            "MR. KUSATZKY [Defense counsel]: *** I believe the

     State has a theory if Mr. Johnson does not appear at

     trial, they will be asking of the Court to use a

     transcript of that hearing ***.

            THE COURT:   Mr. State's Attorney, do you have any

     information this witness will not be available for

     purposes of trial?


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            MR. ANDERSON [Prosecutor]:   I don't know whether

     he'll be available [f]or trial ***.     I believe he will

     be available at trial. ***

                                 * * *

            MR. KUSATZKY:   Your Honor, I just want to be

     clear, I did not cross examine him on the points of the

     substantive nature of the allegation ***.

                                 * * *

            THE COURT:   *** I won't have this Court have a

     legal chess game gentlemen, it's not going to happen.

     I called the witness.     You have an opportunity to

     examine the witness *** as to all his testimony in this

     cause.   I don't know whether or not this witness will

     be available *** and in fact if he isn't, I don't even

     know whether or not I would allow the testimony to

     stand ***, but I'm not going to have this legal chess

     game ***.

            ***

            *** Let me end it right now, recall the witness.

     You may have an opportunity to examine him."

Defense counsel's subsequent cross-examination of Johnson

occupied the next 35 pages of record.

     Johnson died in 1997 from causes unrelated to the offense at


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issue.   Defendant's trial began in 1998.   The trial court denied

defendant's motion to bar use of Johnson's prior testimony at

trial.   The jury found defendant guilty and the court entered

judgment on the verdict.

     Defendant appealed, arguing that the court erred by

admitting Johnson's testimony into evidence.    We analyzed the

admissibility of the testimony under the standards enunciated in

Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S.

Ct. 2531, 2539 (1990).     We said:

     "Where there was adequate opportunity to cross-examine

     the witness at the prior hearing and defense counsel

     took advantage of that opportunity, the transcript

     bears sufficient indicia of reliability and affords the

     trier of fact a satisfactory basis for evaluating the

     truth of the prior statement. [Citation.]     The

     opportunity to cross-examine is considered adequate and

     effective only when the motive and focus of the cross-

     examination at the time of the initial proceeding were

     the same or similar to that of the subsequent

     proceeding.    People v. Rice, 166 Ill. 2d 35, 41, 651

     N.E.2d 1083 (1995).

            The motive and focus of the cross-examination at

     Henry's bond rehearing differed significantly from that


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     of his trial.   The purpose of the bond rehearing was to

     determine whether Henry had violated the conditions of

     his bond by contacting Gaddis.    Although the court

     improperly expanded the scope of this hearing by

     permitting the State to question Gaddis extensively

     about the crime itself, the motive of the defense

     during cross-examination remained limited to the

     allegations of Henry's bond violations.    As such, we

     find that Henry did not have an adequate opportunity to

     effectively cross-examine Gaddis at the bond rehearing

     and that the admission of the testimony violated the

     confrontation clause."    People v. Brown, No. 1-98-1411,

     slip op. at 9 (2001) (unpublished order under Supreme

     Court Rule 23).

In a footnote, we added:

            "While we are aware of the statutory hearsay

     exception for deceased witnesses (725 ILCS 5/115-10.4

     (West 2000)), we make no comment as to its

     applicability to this case since neither party raised

     the issue on appeal."    Brown, No. 1-98-1411, slip op.

     at 9 n.1.

     On remand prosecutors moved for permission to introduce

Johnson's testimony into evidence pursuant to section 115-10.4 of


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the Code.    The prosecutor said:

     "The testimony of Gaddis Johnson *** is offered as to

     the material facts of his kidnaping and torture at the

     hand of the defendant and his henchmen.

            *** The testimony is more probative on the point

     for which it is offered than any evidence that could be

     procured since the testimony is that of the victim

     himself narrating the events."

The court held:

            "There was a cross-examination at the bond

     hearing.   I've reviewed the cross-examination of Mr.

     Kusatzky of Mr. Johnson.    It's within this Court's

     opinion that it was an adequate cross-examination."

The court allowed the prosecutor to read Johnson's testimony to

the jury on retrial.

     Johnson's niece testified that on March 8, 1995, she saw

defendant and his wife come to the apartment to talk to Johnson.

She saw a gun in defendant's hand.        She watched as Johnson left

with defendant and defendant's wife.

     Johnson's sister testified that after she came home on March

8, defendant called her and told her that he would kill Johnson

unless she repaid defendant the $3,500 that Johnson's brother had

taken from him.    Johnson's sister heard Johnson screaming in the


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background.   She received seven or eight calls from defendant

that day, along with several calls from defendant's wife.

     Timothy Belin admitted that he signed a statement at the

police station on March 11, 1995.      He testified that police

tricked him into signing the statement.      He did not tell police

or the assistant State's Attorney any of the facts in the

statement the assistant State's Attorney wrote out.      He signed it

without knowing what the attorney had written.      The court

permitted a prosecutor to read the signed statement into the

record.

     According to the statement, defendant brought Johnson to a

room in a housing project and told another man to put Johnson in

a closet with a pit bull.   Belin heard Johnson yelling.

Defendant directed Johnson to strip and he ordered Belin and

others to tape over Johnson's mouth with duct tape, and to use

more tape to bind Johnson's hands and feet.      Defendant directed

another man to burn Johnson.   The man got a butter knife and

heated it on the stove.   He then pressed it against Johnson's

bare skin.    The man also took a hanger, heated it, and used it to

burn Johnson.   He burned Johnson numerous times.     Another man

poured bleach on Johnson's wounds.

     In a separate proceeding Belin pled guilty to charges of

aggravated kidnaping.


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     Johnson testified at the bond hearing that defendant and his

wife came to Johnson's apartment on March 8, 1995.    Johnson

considered defendant a close friend of his family, and Johnson

had known defendant's wife all her life.   Johnson let them into

the apartment.   Defendant put a pistol to Johnson's stomach and

demanded that Johnson accompany him to his van.   Defendant asked

where was Johnson's brother.   Johnson said he did not know.

Defendant and his wife took Johnson in their van to a housing

project.    Defendant told several "moes" to clear the front of the

building.   Johnson explained that leaders in the Black Peace

Stones gang, including defendant, called other gang members

"moes" so they would not need to use any names.

     Johnson recognized Belin and another man amongst the moes

who marched Johnson into the building then into an apartment and

into a closet.   Defendant ordered a man to put a pit bull in the

closet with Johnson.   The dog bit Johnson's wrist.   The men

including Belin stripped Johnson on defendant's orders.    They

taped Johnson's ankles together and bound his arms.    Defendant

ordered the men to put knives and a hanger on the stove.    Belin

burned Johnson with an iron.   Johnson heard defendant call

Johnson's sister and tell her that he would torture and kill

Johnson unless she came up with the money.   While defendant was

on the phone he ordered one of the men to burn Johnson with a


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heated knife.    Johnson hollered when they burned him.

     After more burns and more calls defendant ordered Belin to

pour salt on Johnson's wounds.    Belin also poured bleach on the

wounds.   Later they unbound Johnson and allowed him to put his

clothes back on.    Defendant ordered one of the men to put a

duffel bag over Johnson's head.    The men also rebound Johnson

with duct tape.    They took Johnson to the van and then to an

apartment in a different building.      When Johnson answered that he

still did not know where his brother had gone, defendant ordered

the men to take Johnson by some railroad tracks and shoot him in

the head and the heart.    When they stopped at a fast food place

on the way, Johnson slid out of the car and ran down nearby el

tracks.   A few blocks away he found a phone from which he called

his family.

     The jury found defendant guilty of aggravated battery and

aggravated kidnaping.    The court sentenced defendant, as a

habitual criminal, to natural life in prison.     Defendant filed a

timely appeal.

                              ANALYSIS

     Defendant raises only one issue on appeal.     He contends that

the trial court erred again by permitting prosecutors to read to

the jury the testimony Johnson gave at the bond hearing.     We

review the trial court's decision for abuse of discretion.


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People v. Hamilton, 364 Ill. App. 3d 721, 723 (2006).

     Defendant has a constitutional right to confront the

witnesses against him.     Crawford v. Washington, 541 U.S. 36, 158

L. Ed. 2d 177, 124 S. Ct. 1354 (2004).    The constitution permits

use of a witness's testimonial statement against a defendant only

if (1) the declarant cannot appear at trial and (2) the defendant

had an opportunity to cross-examine the witness when the witness

made the statement.    Crawford, 541 U.S. at 60, 158 L. Ed. 2d at

198, 124 S. Ct. at 1369.    Most courts have required that the

cross-examiner must have had the same motive at the time of

cross-examination as he would have for cross-examination of the

witness at trial.   See Willingham v. State, 279 Ga. 886, 887, 622

S.E.2d 343, 345 (2005) (statute required similar motive for

initial cross-examination to make prior testimony admissible);

State v. Summers, 159 S.W.3d 586, 597 (Tenn. Crim. App. 2004)

(court rule); Mercer v. United States, 864 A.2d 110, 115-16 (D.C.

2004); State v. Henderson, 139 N.M. 595, 598, 136 P.3d 1005, 1008

(2006); Farmer v. State, 124 P.3d 699, 703 (Wyo. 2005); United

States v. Carson, 455 F.3d 336, 378 (C.A.D.C. 2006).

     In People v. Fry, 92 P.3d 970 (Colo. 2004), the trial court

permitted the prosecution to introduce at trial testimony from a

preliminary hearing.   The Colorado Supreme Court found the

testimony inadmissible.    The court explained:


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    "[C]ross-examination at the preliminary hearing would

    not have provided the same opportunity for exploration

    into the case. [Citation.]

                 'The right to confrontation is basically

            a trial right. It includes both the

            opportunity to cross-examine and the occasion

            for the jury to weigh the demeanor of the

            witness. A preliminary hearing is ordinarily

            a much less searching exploration into the

            merits of a case than a trial, simply because

            its function is the more limited one of

            determining whether probable cause exists to

            hold the accused for trial.' [Barber v. Page,

            390 U.S. 719, 725, 20 L. Ed. 2d 255, 260, 88

            S. Ct. 1318, 1322 (1968).]

                                * * *

            *** Preliminary hearings are limited to a

    determination of probable cause so that they do not

    become mini-trials. Were we to allow extensive

    cross-examination by defense counsel so as to prevent

    any Confrontation Clause violations at trial if a

    witness were to become unavailable, we would turn the

    preliminary hearing in every case into a much longer


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     and more burdensome process for all parties involved."

     Fry, 92 P.3d at 978.

     Apart from the constitutional constraints, Johnson's

statements must meet the constraints of section 115-10.4 of the

Code.   That section provides:

            "(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 if the court determines that:

                 (1) the statement is offered as evidence

            of a material fact; and

                 (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; and

                 (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


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     declarant under oath at a trial, hearing, or other

     proceeding." 725 ILCS 5/115-10.4 (West 2004).

     Illinois courts have developed the interpretation of

"circumstantial guarantees of trustworthiness" in the context of

cases concerning the use of hearsay at trial.    To determine the

trustworthiness of a statement, courts have considered several

factors, including the adequacy of the defendant's opportunity to

cross-examine the declarant.    See People v. Bueno, 358 Ill. App.

3d 143, 160 (2005); People v. Brown, 363 Ill. App. 3d 838, 849

(2005).   Our supreme court held:

            "For an opportunity to cross-examine to be

     considered meaningful, and therefore adequate and

     effective, the motive and focus of the cross-

     examination at the time of the initial proceeding must

     be the same or similar to that which guides the cross-

     examination during the subsequent proceeding."      People

     v. Rice, 166 Ill. 2d 35, 41 (1995).

The court in Rice did not report any restriction on the actual

cross-examination of the witness at the preliminary hearing.

Nonetheless, our supreme court affirmed the trial court's

decision to bar use of that witness's testimony because the

motive for the cross-examination at the preliminary hearing

differed too much from the motive for cross-examination at trial.


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     As we held in our order on the initial appeal here, the

issues at the bond hearing differed significantly from the issues

at trial.   Persuasive precedent from other jurisdictions holds

that issues at the bond hearings in those cases differed too much

from the issues at trial for the admission into evidence of

testimony from the bond hearings.     Dickson v. State, 281 Ga. App.

539, 540, 636 S.E.2d 721, 723 (2006); People v. Vera, 153 Mich.

App. 411, 416, 395 N.W.2d 339, 341 (1986).

     Here, at the bond hearing the court needed to decide whether

the prosecutors proved that defendant had contacted Johnson in

violation of the conditions of the bond and whether defendant

possessed heroin while free on bond.     At trial the jury needed to

decide whether prosecutors proved beyond a reasonable doubt that

defendant kidnaped Johnson and committed aggravated battery

against him.   The issues at the two hearings have little in

common.

     The prosecution argues that the judge changed the motive for

the cross-examination at the bond hearing.     The judge told

defense counsel that counsel could not reserve for trial the

cross-examination of Johnson on testimony about the aggravated

battery and aggravated kidnaping.     After the ruling counsel

questioned Johnson about the offenses.     The extended cross-

examination uses 35 pages of the trial record.


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     In effect the trial court sought to change the character of

the bond hearing.   As defense counsel pointed out at the bond

hearing, the prosecutors questioned Johnson as though they

expected him not to appear at trial.    The trial court permitted

the prosecution to proceed as though the bond hearing became an

evidence deposition, which would preserve for trial Johnson's

testimony on issues that had no bearing on the allegations that

defendant violated the conditions of his bond.    See Suffolk v.

Chapman, 31 Ill. 2d 551, 559 (1964).

     Supreme Court Rule 217 prescribes proper procedures for

evidence depositions.    134 Ill. 2d R. 217.   The rule requires 21

days' advance notice.    The trial court and the prosecution here

did not provide the requisite notice.    Moreover, the court should

allow an evidence deposition only when the party seeking to

preserve the testimony shows certain specified grounds for the

exceptional procedure.    See Adams v. Northern Illinois Gas Co.,

333 Ill. App. 3d 215, 224 (2002), aff'd, 211 Ill. 2d 32 (2004).

The prosecution showed no such grounds here.

     The attempt to convert the bond hearing to an evidentiary

deposition did not change defense counsel's basic motivation at

the hearing.   The court needed to decide only whether defendant

contacted Johnson in violation of the conditions of the bond.

While defense counsel had reason to attack that aspect of


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Johnson's testimony, he had no reason to reveal his trial

strategy for impeaching Johnson's testimony concerning the

kidnaping and battery.    We hold that defense counsel did not have

a similar motive for cross-examining Johnson at the bond hearing

as he would have had for cross-examination at trial.    Therefore

Johnson's testimony about the kidnaping and battery from the bond

hearing lacked the circumstantial guarantees of trustworthiness

needed to make the testimony admissible under section 115-10.4

     Next, the prosecution argues that the trial court committed

only harmless error because Johnson's testimony had no effect on

the result of the trial.   Before trial the prosecutor told the

court that Johnson's testimony was "more probative *** than any

evidence" otherwise available on the issue of defendant's role in

the kidnaping and battery.   The prosecutor relied on Johnson's

testimony in arguments to the jury.    While Belin's written

statement corroborated much of Johnson's account, Belin retracted

the statement at trial.    The jury might have found Belin's trial

testimony more credible than his written statement.    We find a

reasonable possibility that the jury might have reached different

verdicts in the absence of Johnson's testimony.    See People v.

Johnson, 296 Ill. App. 3d 53, 66 (1998).

     At the bond hearing defendant cross-examined Johnson on his

testimony concerning the alleged bond violation.    Defendant did


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not have a motive similar to his motive at trial for cross-

examining Johnson's testimony concerning the kidnaping and

battery.    Therefore, Johnson's testimony on those issues lacked

the circumstantial guarantees of trustworthiness that section

115-10.4 of the Code requires.    Because the testimony has more

probative force than any other evidence offered on the extent of

defendant's involvement in the kidnaping and battery, we cannot

find the error harmless.   Defendant does not contest the

sufficiency of the evidence.   Therefore we reverse the

convictions and remand for a new trial.

     Reversed and remanded.

     FITZGERALD SMITH, P.J., and JOSEPH GORDON, J., concur.




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