                                                                               FOURTH DIVISION
                                                                              FEBRUARY 16, 2006

No. 1-02-3276



THE PEOPLE OF THE STATE OF ILLINOIS,                           )      Appeal from the
                                                               )      Circuit Court
                         Plaintiff-Appellee,                   )      of Cook County.
                                                               )
                 v.      )      No. 94 CR 4624
                                                               )
ANTHONY BROWN,                                                 )      Honorable
                                                               )      Reginald Baker,
                         Defendant-Appellant.                  )      Judge Presiding.


                             MODIFIED UPON DENIAL OF REHEARING


       JUSTICE MURPHY delivered the opinion of the court:

       Following a jury trial, defendant Anthony Brown was convicted of murder, attempted

murder, two counts of armed robbery, and attempted armed robbery. He was sentenced to 26

years= imprisonment for murder, attempted murder and one armed robbery count, and a

concurrent 6 years for the other armed robbery count and attempted armed robbery. Defendant

contends on appeal that the trial court erred in publishing to the jury the custodial statements and

prior testimony of two codefendants who did not testify at trial. 1 He argues that the statute


       1
           Defendant raises three other contentions in the Aissues presented for review@ portion of

his brief. However, he does not discuss these contentions, or provide citations to authority in

support of these contentions, in the Aargument@ portion of his brief. Contentions of error

unsupported by argument or citation to authority do not satisfy the requirements of Supreme

Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)) and are deemed waived. Einstein v. Nijim, 358
No. 1-02-3276


authorizing the admission of the statements and testimony, section 115-10.2 of the Code of

Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.2 (West 2002)), was unconstitutionally

applied because it (1) infringed upon his constitutional right under the confrontation clause (U.S.

Const. amend. VI; Ill. Const. 1970, art. I, '8) to confront the witnesses against him, and (2) was

applied retroactively, in violation of the constitutional prohibition of ex post facto laws. The

State concedes that the admission of the statements and testimony violated the confrontation

clause but contends that this court should affirm defendant=s conviction because the error was

harmless beyond a reasonable doubt.

       Before trial, the State filed a motion in limine to introduce into evidence the custodial

statements and prior trial testimony of codefendants Kilsey Shearrill and Arthur Noland. The

trial court denied the motion. On interlocutory appeal, this court reversed, directing the trial

court to apply Code section 115-10.2. People v. Brown, No. 1-98-1669 (2001) (unpublished

order under Supreme Court Rule 23). At the commencement of trial, defendant renewed his

objection to the evidence from Shearrill and Noland, and the court denied the objection.

       At trial, Umesh Shah testified that, in January 1994, he and his wife Elia and son Parthiv

owned a store, Herman=s Food and Deli (Herman=s Deli), at 20 West 138th Street in Riverdale.


Ill. App. 3d 263, 275 (2005).




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No. 1-02-3276


The store was separated by a wall into two separate areas, the grocery and liquor sections, each

with its own exterior entrance. Every day, the exterior door in the liquor section was locked

until 2:30 p.m. An interior door connected the two sections. The store had a working video

surveillance system. It was not used to record, only to view from one location what was

happening throughout the store.

       On January 26, 1994, Umesh and Elia were working in the liquor section while employee

Sandi Crosson was working in the grocery section. Shortly before noon, Umesh was preparing

to make a bank deposit when a Ahigh school student@ who frequented the store entered the liquor

section wearing a winter cap. When the young man came to the liquor counter with a bottle of

beer, Umesh asked to see his identification. The man said that he did not have any identification,

so Umesh told him that he could not buy the beer and took the beer bottle from him. The man

walked Aa couple steps@ toward the door between the liquor and grocery sections. He then

turned, said AHoldup@ and fired a gunshot. Umesh was shot in the left bicep. The young man

jumped up on the counter and fired another shot at Umesh, striking him in the left upper thigh.

The young man then turned toward Elia and fired four shots, followed by clicking. Elia was shot

in the chest. When the weapon was empty, the young man fled into the grocery section, where

Umesh followed him and Crosson tried to grab him. He pushed Crosson away and fled the store

headed westbound toward a nearby railway line. He had not taken any money from the store.

       While in the hospital for his wounds, Umesh told the police that he could identify the

young man. The police sent a sketch artist to the hospital, where he and Umesh developed a




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No. 1-02-3276


composite sketch of the robber. On February 3, 1994, Umesh viewed a lineup at the Riverdale

police station, identifying Shearrill as the young man who robbed his store.

       Sandi Crosson testified that, on January 26, 1994, she was working as a cashier in the

grocery section of Herman=s Deli. At about noon, two young black men entered the store. One

wore a bandanna covering his lower face and a Georgetown coat with the hood pulled down to

his eyebrows. From the visible portion of the first man=s face, including a prominent gap

between his front teeth, Crosson identified defendant in court as the first man. The other man

covered part of his face with a ski mask and wore a white jacket. Defendant approached the

grocery counter with chips and candy. Crosson did not see where the second man had gone

while she processed defendant=s purchase. A third black man entered the store, wearing a white

coat and a ski mask covering his entire face. He looked at defendant and then produced a

revolver. Defendant jumped behind the grocery counter, shoved Crosson aside, and demanded

the money from the lottery machine. When Crosson opened the lottery machine, defendant

punched Crosson in the mouth and removed the money from the machine. At that moment,

gunshots rang out from the liquor section. Upon hearing the shots, defendant picked up the

lottery machine money and a bank deposit bag from under the counter, and the two men fled.

They headed westbound toward the railway viaduct when they left the store. Crosson hit an

alarm panic button and headed toward the exit to find a public telephone, the store=s telephone

being out of order. At this point, the man Adoing the shooting on the liquor side@ fled past

Crosson. She grabbed him, but then let him go in the belief that he was armed. He fled

westbound underneath the railway viaduct. As Grosson was telephoning the police, Umesh

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No. 1-02-3276


appeared, severely bleeding, and said that Elia was dead. Crosson later determined that

defendant had taken between $200 and $300.

       On January 28, police showed Crosson a composite sketch of a man whom she identified

as the man who fired shots in the liquor section and fled. On February 5, she viewed a lineup of

six men at the Riverdale police station and identified defendant as one of the robbers. She was

paying attention only to the area of their faces that had been uncovered on the first robber=s face,

and she had the men in the lineup smile so she could see if they had the robber=s front-teeth gap.

At trial, Crosson identified a ski mask and white coat as those worn by the third robber, the one

who had pointed a revolver at her.

       Dr. Edmond Donoghue, with the Cook County medical examiner, testified that he

conducted the autopsy on Elia Shah on January 27, 1994. Elia was shot in the right chest, twice

in the neck, and twice in the left chest. It was Dr. Donoghue=s medical opinion that she died of

these gunshot wounds. Dr. Donoghue recovered and inventoried three bullets from Elia=s body.

       Dr. Gary Merlotti, a trauma surgeon, testified that he treated Umesh Shah at Christ

Hospital in Oak Lawn on January 26, 1994. Umesh had two gunshot wounds, one in the left arm

with the bullet lodged in his shoulder, and one in his left thigh, where the bullet passed through.

During surgery to repair the nerves and blood vessels in Umesh=s left arm, Dr. Merlotti

recovered and inventoried the bullet in Umesh=s left shoulder.

       The parties stipulated that Investigators James Tomasek, Emory Cox, and Lee Wojtas of

the sheriff=s police would testify that they examined the crime scene at Herman=s Deli on January

26, 1994. They recovered various objects, two latent fingerprints from the liquor counter, and

                                                -5-
No. 1-02-3276


five latent fingerprints from the cooler in the liquor section. They also obtained fingerprints

from Elia Shah, defendant, Shearrill, and Noland. The parties stipulated that forensic scientist

James Fazekas of the State Police crime laboratory would testify that he examined the

aforementioned objects and fingerprints. None of the objects had useable latent fingerprints, and

the prints recovered from the counter and cooler did not match those of Shah, defendant,

Shearrill, or Noland.

       Officer Jeff Michalek of the Riverdale police testified that he responded to a call of a

robbery and shooting at Herman=s Deli. Since it was stated in the dispatch that the three suspects

had fled westward, Officer Michalek proceeded to the area west of the store. After speaking

with a passerby, Officer Michalek climbed up on the railway viaduct. There, he saw two sets of

footprints in the fresh snow, heading westward across the tracks and proceeding down the far

side of the viaduct, where he lost the trail. Officer Michalek requested a canine unit, and Officer

Riley responded with a dog. Proceeding from the footprint trail, Officer Riley and his dog

traveled southwestward and stopped at the house of Arthur Noland. Officer Michalek saw

Noland come out of the house and begin to shovel the snow in front of his house. The police dog

with Officer Riley Aalerted@ or reacted to the back door of Noland=s house. Officer Michalek

could not recall if the dog alerted to Noland himself.

       Assistant State=s Attorney (ASA) John Somerville testified that, on February 2, 1994, he

went to the Riverdale police station to interview Noland. Noland told ASA Somerville where

Acertain items@ from the Herman=s Deli robbery were located. Noland was then allowed to make

a telephone call, and he called his sister Dimiata. Later, when the items -- a black knit ski cap, a

                                                -6-
No. 1-02-3276


coat, and a revolver -- were brought to the police station, ASA Somerville showed them to

Noland, who identified them as the clothing he wore and the weapon he used during the robbery.

Noland gave a handwritten statement, which ASA Somerville then read into the record.

          The substance of Noland=s statement was that he, defendant, and Shearrill decided to rob

Herman=s Deli. Shearrill carried a revolver and wore a skullcap pulled down to his eyebrows.

Defendant wore a skullcap, bandanna, and a Georgetown coat. Noland wore a ski mask and a

Duke coat turned inside-out so as to be less identifiable. Shortly before 11 a.m. on January 26,

1994, Noland, defendant, and Shearrill went to Herman=s Deli. Defendant and Shearrill entered

first, Shearrill going to the liquor section while defendant stayed in the grocery section. After a

brief time, so that they did not all enter the store together, Noland entered the store and

demanded the bank deposit bag from cashier Crosson. As Crosson gave Noland the bag,

defendant tried to open the lottery machine. When Noland heard gunshots and screams from the

liquor section, he and defendant fled the store. They ran across the railway viaduct to Noland=s

house. By the time they reached the house, Shearrill also arrived there, having run under the

tracks. Noland went outside and Aacted like [he] was shoveling snow@ so he Acould see what was

going on outside.@ He went back inside and the three men divided the money. Shearrill told the

others that he had shot the store owners because he believed they had sounded the alarm.

Noland put his cap, coat, and pistol in his bedroom closet. Later, when Noland called his sister

Dimiata from the police station, he instructed her to give his weapon, ski mask, and coat to the

police.




                                                 -7-
No. 1-02-3276


       Dimiata Noland, codefendant Noland=s sister, testified that, on January 25, 1994, she

overheard her brother discussing with defendant and Shearrill a plan to rob Herman=s Deli. She

could hear clearly what her brother was saying but not what defendant or Shearrill was saying.

About a week later, her brother called her from the Riverdale police station, telling her to give a

bag in his closet to police officers that were coming to his home. Dimiata found the bag in the

closet and gave it to the officers, who opened it. Inside were a hooded jacket turned inside-out, a

black ski mask, and a pistol, which Dimiata identified in court. Dimiata testified that Danielle

Nowden was defendant=s girlfriend and lived across the street from the Noland home.

       ASA Mark Struppa testified that, on February 3, 1994, he went to the Riverdale police

station to interview codefendant Shearrill. Shearrill gave a handwritten statement, which ASA

Struppa then read into the record. The substance of Shearrill=s statement was that he, defendant,

and Noland decided on January 25, 1994, to rob Herman=s Deli, an idea suggested by Noland.

They agreed to rob the store next day, and Noland provided the group two chrome revolvers.

Shearrill carried one revolver and Noland carried the other. On the day of the robbery, Noland

wore a ski mask and defendant wore a scarf. Defendant and Shearrill entered the store first, and

Shearrill going to the liquor section. He tried to purchase a beer, but the owner asked for

identification, so Shearrill turned as if to leave. When he saw that Noland had a pistol aimed at

the grocery clerk, Shearrill pulled out his pistol and demanded money. When the male owner

reached behind the counter, Shearrill fired two shots at him because he believed him to be

pressing the alarm button. The female owner ran to her husband and Shearrill shot her. Shearrill

fled when he saw that she was bleeding from her chest. He met with defendant and Noland at

                                                -8-
No. 1-02-3276


Noland=s house. There, they divided the money stolen by defendant and Noland and then stayed

for several hours to avoid the police outside.

       Kenneth Moultrie testified that, in January 1994, defendant and Shearrill were

acquaintances of his. At the end of January 1994, they were guests in his Chicago home for

about two days. During that time, a woman named Danielle came to visit defendant. About a

day after defendant and Shearrill left, the police came to Moultrie=s home.

       Danielle Nowden testified that she knew defendant for over 13 years and was his

girlfriend in January 1994. She knew Shearrill as a friend of defendant and knew Noland

because he lived across the street from her at that time. Nowden denied that defendant had

called her in late January 1994 to ask for Aa car to leave town.@ On February 1, 1994, Shearrill

called Nowden to ask her to ask his aunt, who lived near Nowden, to lend him money. Nowden

denied that Shearrill had requested the money for himself and defendant and also denied that

defendant had participated in the telephone call. Nowden went to Shearrill=s aunt 2, Joeann

Smith, and asked for the money for Shearrill. Also on February 1, Nowden called defendant at

his home and later picked him up at his home in her vehicle. She denied at trial that, during that

ride, defendant told her that Ahe got himself involved in something that he could not get out of.@

Nowden testified that, late at night on February 1, 1994, several police officers stopped her on

the street and brought her to the Riverdale police station without her consent. There, she was


       2
           Defendant referred to Smith as his aunt, while she testified that she was his godmother

rather than his aunt.



                                                 -9-
No. 1-02-3276


questioned and threatened for about four hours as the officers attempted to discover defendant=s

whereabouts. Nowden could not identify any of the officers who arrested or questioned her

beyond that they were all white males.

       Nowden further testified that, during her several visits with defendant at jail, defendant

did not tell her that he, Noland, and Shearrill had committed the robbery of Herman=s Deli.

Nowden testified that on the afternoon of February 13, 1997, she was taken by 10 armed

investigators, who told her they were investigator=s for defendant=s counsel, to the courthouse.

She identified all 10 investigators as white men. At the courthouse, she met with ASA John

Coyne. She signed blank pieces of paper, rather than a handwritten statement, only because they

threatened to take her children away if she did not sign. She signed her initials on each of six

pages, as well as at several (but not all) of the corrections in the statement, but she was not given

the opportunity to read the statement first because the pages were folded in the middle. She

found no fold marks on the pages of the statement presented in court. Nowden denied making

any of the assertions in the statement. She denied having been in contact with defendant from

January 26, 1994, to the date of the trial, and specifically denied visiting defendant while he was

staying at Moultrie=s house.

       Joeann Smith, codefendant Shearrill=s godmother, testified that her neighbor Danielle

Nowden telephoned her on January 30, 1994, telling her that Shearrill wanted to borrow money

for himself and defendant. Smith would not lend the money and told Nowden to tell Shearrill to

call her himself.




                                                -10-
No. 1-02-3276


       ASA John Coyne testified that, in his employment as an ASA, he is not allowed to carry

a handgun. On February 13, 1997, ASA Paul Groah asked ASA Coyne to interview Danielle

Nowden. That afternoon, Nowden came to Coyne=s office. With nobody else present in the

office, ASA Coyne and Nowden discussed what she knew about the 1994 robbery of Herman=s

Deli. ASA Coyne then asked Nowden if he could write down her statement, and Nowden

agreed. Nowden gave the same information as she had earlier, and ASA Coyne wrote it down.

ASA Coyne then read through the six-page statement line by line, stopping to make corrections

at Nowden=s request. Nowden and ASA Coyne initialed each correction and each page, and then

signed the statement on the bottom of the last page. ASA Coyne did not fold any paper or give

Nowden folded blank pages to sign or initial, and he did not see anybody threaten or abuse

Nowden. ASA Coyne read Nowden=s statement into the record.

       In her statement, Nowden stated that she voluntarily went to the Riverdale police station

on February 1, 1994. She had received several telephone calls from Shearrill asking her to

request money from Joeann Smith, but Smith refused. Defendant had also called to tell her that

he Aneeded a car to leave town.@ Defendant owned a Georgetown pullover jacket until the winter

of 1994. On February 1, she picked up defendant at his home in her vehicle, and he told her

during the drive that Ahe got himself involved in something that he could not get out of,@

involving Shearrill and Noland. After defendant was arrested, he told Nowden during a jail visit

that he, Shearrill, and Noland robbed Herman=s Deli on January 26, 1994, while he was wearing

his Georgetown coat. Defendant had not been armed but Shearrill and Noland were, and

defendant fled the store when he heard gunshots.

                                               -11-
No. 1-02-3276


       ASA Paul Groah testified that codefendants Noland and Shearrill each testified at his

own separate trial on charges arising from the Herman=s Deli robbery. Defendant did not have

counsel present at either trial. ASA Groah published the testimony of Noland and Shearrill.

       At his trial, Noland had testified that he was at home on the morning of January 26, 1994,

when defendant and Shearrill came over. Because all three men lacked money, they had planned

to rob Herman=s Deli. They had first discussed the matter on January 24 and discussed it in more

detail on the 25th. Noland was going to bring a broken pistol, and Shearrill was also going to

bring a weapon, which he told Noland was also inoperative. Defendant did not have a weapon.

They arrived at the store before 11 a.m. on the 26th, but there were too many people in and

around the store, so they left. When they returned, there were no customers in the store, so

Shearrill and defendant entered the store, while Noland stood outside briefly pretending to make

a telephone call. Shearrill went into the liquor section while defendant remained in the grocery

section. When Noland entered the store and pointed his pistol at the clerk, defendant jumped

over the counter. The clerk gave Noland a money bag. Noland denied striking the clerk. When

Noland and defendant heard shots from the liquor section, they fled the store and ran to Noland=s

house. Shearrill arrived at Noland=s home a short time later, and the three men divided the

money. Noland saw police officers outside his house, so he went outside and pretended to

shovel snow so he could ask the officers what was happening. When Noland was brought to the

police station on a later date for questioning, he initially denied knowledge of the robbery but

later admitted his involvement and gave a statement, which was an accurate account of events.

He also voluntarily told his sister to give the police his pistol, coat, and mask from the robbery.

                                                -12-
No. 1-02-3276


       At his trial, Shearrill had testified that, on January 25, 1994, he and Noland agreed to rob

Herman=s Deli. The next day, defendant came to Noland=s home and all three men planned the

robbery. Shearrill and Noland were armed with pistols, provided by Noland, and Shearrill=s

pistol was an automatic. Noland told Shearrill that both weapons were inoperative. Noland had

a ski mask, but defendant did not. When Shearrill was in the store, he first attempted to purchase

a bottle of beer, but he did not have identification and was not sold the beer. When he turned

away, he saw defendant and Noland robbing the grocery section of the store. Shearrill then

pulled out his pistol, pointed it at owner Umesh Shah, and shot him. Elia Shah screamed that she

would give him the money, but Shearrill fired four shots at her. When he saw that she was

bleeding from the chest, Shearrill fled the store, returning to Noland=s home. He had taken no

money from the store. He claimed that he received nothing when the proceeds of the robbery

were divided, expressly repudiating the portion of his statement where he stated that he had

received $40.

       Shevonnia Carey testified for defendant that she worked with Danielle Nowden in

February 1997. On February 13, Nowden told Carey that she kept receiving telephone calls

requesting her to come to the courthouse and give a statement regarding defendant. Later that

day, at about 11:30 a.m., a white man arrived at Carey and Nowden=s workplace in a vehicle that

appeared to be a police or government vehicle. The man did not identify himself but said that he

was there to help defendant. He asked Nowden to come to the courthouse to give a statement.

Nowden borrowed Carey=s vehicle, stating that she was going to the courthouse. At about 6

p.m., a different man arrived at Carey=s workplace in a police or government vehicle and took

                                               -13-
No. 1-02-3276


Carey to the courthouse to retrieve her vehicle. While Carey waited for Nowden to come out of

the courthouse, she saw her in an office with two white men. While Carey did not hear the men

threaten or scream at her during the approximately 10 minutes she was in the office with

Nowden, Nowden seemed upset and eventually expressed a desire to leave. One of the men told

Nowden that she could leave once she signed something, and Carey saw Nowden sign a

document. Carey did not see the document, but at least some of the pages were folded over or

covered with a folded page. Nowden and Carey then left the courthouse. At trial, Carey could

not see any crease or fold in Nowden=s statement presented to her for her viewing.

       Vadetta Witherspoon, defendant=s mother, testified that she was present along with

Danielle Nowden at each of Nowden=s seven jail visits with defendant. Defendant made no

admissions regarding participation in the Herman=s Deli robbery during any of the visits.

       The jury found defendant guilty as charged of murder, attempted murder, armed robbery,

and attempted armed robbery. The court denied defendant=s posttrial motion, in which he argued

in relevant part that the admission of the statements and prior testimony of Noland and Shearrill

was erroneous. This appeal timely followed sentencing.

       Defendant contends that the trial court erred in admitting into evidence the statements

and prior testimony of codefendants Noland and Shearrill because defendant=s right to confront

witnesses against him was thereby infringed. The State concedes that the admission of this

evidence was contrary to the confrontation clause.

       We agree with the State=s concession. In Crawford v. Washington, 541 U.S. 36, 158 L.

Ed. 2d 177, 124 S. Ct. 1354 (2004), the United States Supreme Court overruled the constitutional

                                              -14-
No. 1-02-3276


standard for admissibility of out-of-court statements prescribed in Ohio v. Roberts, 448 U.S. 56,

65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). Crawford rendered the phrases Aindicia of reliability@

and Aparticularized guarantees of trustworthiness,@ used in Roberts, irrelevant to determining

compliance with the confrontation clause. Crawford, 541 U.S. at 60, 158 L. Ed. 2d at 198, 124

S. Ct. at 1369. Instead, the Crawford Court held that the admission of a testimonial statement by

a witness not present at a defendant=s trial complies with the confrontation clause only if the

witness was unavailable at trial and defendant had an opportunity to cross-examine the witness at

the time of the statement. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

AWhatever else the term [>testimonial=] covers, it applies at a minimum to prior testimony at a

preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.@

Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Here, defendant clearly did

not have the opportunity to cross-examine Noland or Shearrill either during the interrogations

that resulted in their statements or during their testimony at their separate trials.

        However, we find that Code section 115-10.2, under which the statements and testimony

were admitted, was not facially invalid under the confrontation clause. Statutes are presumed to

be constitutional, and a facial challenge to a statute fails unless the challenger establishes that no

set of circumstances exists under which the statute would be valid. People v. Cannon, 358 Ill.

App. 3d 313, 317-18 (2005), citing People v. Wilson, 214 Ill. 2d 394, 398-99 (2005), and

quoting In re C.E., 161 Ill. 2d 200, 210-11 (1994). Code section 115-10.2 provided at the time of




                                                 -15-
No. 1-02-3276


trial 3 that a Astatement 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 unavailable.@ 725 ILCS 5/115-10.2(a) (West 2002). This court has considered four

factors in determining whether a particular statement bears such circumstantial guarantees of

trustworthiness: A(1) whether the statement was made spontaneously to a close acquaintance

shortly after the crime occurred; (2) whether the statement was corroborated by other evidence;

(3) whether the statement was self-incriminating or otherwise against the declarant's interest; and

(4) whether there was an adequate opportunity to cross-examine the declarant.@ People v.

Bueno, 358 Ill. App. 3d 143, 160 (2005). Since the existence or absence of cross-examination is

a relevant consideration to admissibility under the statute -- that is, since a court could exclude a

statement on the basis that there was no cross-examination -- we find that Code section 115-10.2

as it stood at the time of trial was not facially invalid under the confrontation clause.

       The issue, therefore, is whether the admission of the statements and prior testimony

constituted harmless error. Our supreme court has recently confirmed that a conviction may be

affirmed despite a Crawford violation of the confrontation clause where that error is shown to be

harmless beyond a reasonable doubt. People v. Patterson, No. 98641, slip op. at 12-14 (Ill.


       3
           Code section 115-10.2 has since been amended to provide that statements are admissible

by its provisions only if Amade under oath and *** subject to cross-examination by the adverse

party.@ Public Act 94-53, ' 5, eff. June 17, 2005.




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No. 1-02-3276


December 15, 2005). AIn determining whether a constitutional error is harmless, the test to be

applied is whether it appears beyond a reasonable doubt that the error at issue did not contribute

to the verdict obtained.@ Patterson, No. 98641, slip op. at 14, citing Sullivan v. Louisiana, 508

U.S. 275, 279, 124 L. Ed. 2d 182, 189, 113 S. Ct. 2078, 2081 (1993); Satterwhite v. Texas, 486

U.S. 249, 258-59, 100 L. Ed. 2d 284, 295, 108 S. Ct. 1792, 1798 (1988); and Chapman v.

California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 828 (1967).

                        A[T]his court [has] listed 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, No. 98641, slip op. at 14, citing People v. Wilkerson, 87

                Ill.2d 151, 157 (1981).

        Here, we find that the statements and prior testimony of codefendants Noland and

Shearrill contributed to defendant=s conviction. After the trial court declared that Noland and

Shearrill were unavailable to testify at trial, the State called three assistant State=s Attorneys to

introduce the handwritten statements and prior court testimony of Noland and Shearrill.

Notably, the State cited these statements and testimony in its closing argument. While these

actions were in conformance with our interlocutory decision in Brown, they were in violation of

                                                 -17-
No. 1-02-3276


Crawford, as we stated above. The Crawford Court specifically condemned the admission into

evidence of confessions by accomplices or codefendants. Crawford, 541 U.S. at 63-64, 158 L.

Ed. 2d at 200, 124 S. Ct. at 1371-72 (criticizing the holdings in People v. Thomas, 313 Ill. App.

3d 998 (2000), and People v. Campbell, 309 Ill. App. 3d 423 (1999), both of which applied Code

section 115-10.2).

       Further, while there was significant other evidence in this case to support the conviction

(Crosson=s eyewitness testimony, Dimiata Noland=s testimony regarding defendant=s

participation in the planning of the robbery, and Danielle Nowden=s prior inconsistent statement

implicating defendant), we do not consider that evidence to be so overwhelming that the error in

admitting Noland and Shearrill=s statements and prior testimony was harmless beyond a

reasonable doubt.

       Finally, the improper testimony regarding the codefendants= statements was not merely

cumulative or duplicative of properly admitted evidence, but was far more detailed than the other

evidence presented. Since the properly admitted evidence was not overwhelming by itself but

was substantially corroborated by the evidence from Noland and Shearrill, we cannot find the

erroneous admission of that evidence to have been harmless beyond a reasonable doubt.

       Therefore, the final issue before us is whether this cause may be remanded for a retrial.

Where the evidence presented at trial, including the erroneously admitted evidence, was

sufficient to support defendant's conviction, retrial is not barred by double jeopardy. People v.

Melchor, slip op. at 51-53 (November 14, 2005), quoting People v. Olivera, 164 Ill. 2d 382, 393




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No. 1-02-3276


(1995). We find that the evidence presented at trial, as described above, was sufficient to

convict defendant beyond a reasonable doubt and a retrial is thus appropriate here.

        Accordingly, the judgment of the circuit court is reversed and this cause is remanded for

a new trial.

        Reversed and remanded.

        Quinn, P.J. and Campbell, J., concur.




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