                             2017 IL App (2d) 140878 

                                  No. 2-14-0878

                            Opinion filed March 3, 2017 

______________________________________________________________________________

                                              IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 12-CF-1269
                                       )
HEZEKIAH D. WHITFIELD,                 ) Honorable
                                       ) Mark L. Levitt,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Presiding Justice Hudson and Justice Spence concurred in the judgment and opinion.

                                            OPINION


¶1     In this direct appeal from his conviction of first-degree murder, the defendant, Hezekiah


Whitfield, raises three arguments: (1) the trial court should have suppressed his unrecorded


custodial statement to police pursuant to section 103-2.1 of the Code of Criminal Procedure of


1963 (Code) (725 ILCS 5/103-2.1 (West 2010)), which renders such statements presumptively


inadmissible in a murder trial; (2) the trial court erred in limiting his ability to present evidence


of other crimes committed by someone else who had been convicted of the same murder (a


conviction that was later overturned); and (3) the trial court should have allowed him to present


evidence explaining his travel to Indonesia shortly after the police obtained a DNA sample from

2017 IL App (2d) 140878


him. Although we agree with certain of these arguments, we affirm on the basis that the trial

court’s errors were harmless in light of the compelling DNA evidence against the defendant.

¶2                                     I. BACKGROUND

¶3     On December 9, 1994, Fred Reckling was found dead in a Grand Appliance store in

Waukegan. His head had been beaten in. Four small droplet-type stains were found on the

carpet near the door. Pieces of the carpet containing the stains were removed and sent for

testing. Reckling’s car was recovered 10 days later in Chicago; there were stains on the driver’s

seat, the steering wheel, and the threshold between the door and the driver’s seat. Later testing

showed that all of the stains on the carpet pieces and the car were blood.

¶4     A little over a year later, James Edwards, who had been arrested for a series of robberies

in the Waukegan area, told Waukegan police that he had murdered Reckling. He was convicted

of the murder in 1996. However, in 2010, the supreme court granted Edwards’s request for

DNA testing of the blood evidence in the case. The DNA from the blood stains did not match

either Reckling’s or Edwards’s DNA. Edwards was subsequently cleared of the charges relating

to Reckling’s death.

¶5     The DNA test ordered by the supreme court took place in May 2011. A comparison of

this DNA with the CODIS DNA database indicated a probable match with the defendant. On

June 24, 2011, the Waukegan police pulled over the truck that the defendant was driving.

Shamiya Mathis, a woman whom the defendant had begun dating a few months earlier, was with

him. The police took the defendant to a hospital and obtained a DNA sample from him. They

then released him.

¶6     On April 13 of the following year, the Chicago police issued a warrant for the

defendant’s arrest in connection with an assault on a woman named Ebony, who appears to have

been known to Mathis. Four days later, on April 17, 2012, the Chicago police department

                                               -2­
2017 IL App (2d) 140878


received a report of an assault involving the defendant and Mathis.          Two patrol officers,

Christopher Erickson and his partner, Jacquelyn Spaargaren, responded.           They found the

defendant outside in an alley with a wound to his head. He told them that Mathis had struck him

in the head with something heavy. Both he and Mathis were transported to the police station (the

defendant was taken first to a hospital for examination). The police questioned both Mathis and

the defendant. The circumstances of that questioning are disputed, and we will address them in

depth later in this opinion. Mathis and the defendant were then released.

¶7     On May 2, 2012, the defendant was indicted for the murder of Reckling. He was arrested

on that charge on May 15, 2012. Trial was eventually set to start on April 21, 2014.

¶8               A. Motion in Limine to Bar Evidence of Defendant’s Statement

¶9     In January 2014, the defendant filed a motion in limine seeking to bar the State from

introducing any evidence regarding the defendant’s statement while in police custody on April

17, 2012. His motion was based on section 103-2.1 of the Code (recording statute), which

provided as follows:

       “When statements by accused may be used.

               (a) In this Section, ‘custodial interrogation’ means any interrogation during which

       (i) a reasonable person in the subject’s position would consider himself or herself to be in

       custody and (ii) during which a question is asked that is reasonably likely to elicit an

       incriminating response.

               In this Section, ‘place of detention’ means a building or a police station that is a

       place of operation for a municipal police department or county sheriff department or

       other law enforcement agency, not a courthouse, that is owned or operated by a law

       enforcement agency at which persons are or may be held in detention in connection with

       criminal charges against those persons.

                                                 -3­
2017 IL App (2d) 140878


               In this Section, ‘electronic recording’ includes motion picture, audiotape, or

       videotape, or digital recording.

               (b) An oral, written, or sign language statement of an accused made as a result of

       a custodial interrogation at a police station or other place of detention shall be presumed

       to be inadmissible as evidence against the accused in any criminal [homicide] proceeding

       *** unless:

                      (1) an electronic recording is made of the custodial interrogation; and

                      (2) the recording is substantially accurate and not intentionally altered.

                                              ***

               (e) Nothing in this Section precludes the admission *** (ii) of a statement made

       during a custodial interrogation that was not recorded as required by this Section, because

       electronic recording was not feasible, *** (viii) of a statement given at a time when the

       interrogators are unaware that a death has in fact occurred, or (ix) of any other statement

       that may be admissible under law. The State shall bear the burden of proving, by a

       preponderance of the evidence, that one of the exceptions described in this subsection (e)

       is applicable. Nothing in this Section precludes the admission of a statement, otherwise

       inadmissible under this Section, that is used only for impeachment and not as substantive

       evidence.

               (f) The presumption of inadmissibility of a statement made by a suspect at a

       custodial interrogation at a police station or other place of detention may be overcome by

       a preponderance of the evidence that the statement was voluntarily given and is reliable,

       based on the totality of the circumstances.” Id.

The defendant argued that, under the recording statute, his statement to police on April 17, 2012,

was inadmissible in any murder trial against him because it was the result of custodial

                                               -4­
2017 IL App (2d) 140878


interrogation at a police station and it had not been electronically recorded. The State did not file

any written response to the motion.

¶ 10   The hearing on the motion commenced on March 27, 2014, and stretched over portions of

four days. The State presented three witnesses, all of them Chicago police officers: Erickson,

Spaargaren, and Juan Cardenas. Before testifying, all of the officers had reviewed Spaargaren’s

written report regarding her conversation with the defendant on April 17, 2012.

¶ 11   Erickson testified that he had been patrolling with Spaargaren at about 8:15 p.m. on the

evening of April 17, 2012, when they received a call regarding a domestic battery. He and

Spaargaren responded to the call. Cardenas and his partner also responded, arriving a few

minutes later.

¶ 12   Erickson found the defendant walking in an alley with a laceration on his head and blood

on his shirt. The defendant said that he had been hit in the head with a blunt object, and he

identified two women (Mathis and another woman) as having been involved. There was no odor

of alcohol on the defendant’s breath and, except for some agitation due to the assault, he was

calm. Cardenas took the defendant to a hospital to have his injuries examined, per police

protocol. Erickson and Spaargaren took Mathis to the police station.

¶ 13   Just before 9 p.m., the defendant was brought to the police station. Erickson described

the defendant’s manner as “normal, a little bit agitated,” because he was “in a police station with

the injuries still to his head.” The defendant was brought to the rear processing room, where he

was chained to a bench along one wall. (Mathis was not in that room at that point.) The room

was about 12 feet by 20 feet, with four desks and computers, and a holding cell that was about 8

feet by 8 feet. There was no video recording equipment in that room. Erickson believed that

there was “video in the back lock up area where offenders [were] fingerprinted” but not in any of

the rooms where offenders were processed.

                                                -5­
2017 IL App (2d) 140878


¶ 14   Erickson sat at a desk and began entering an incident report regarding the assault upon

the defendant by Mathis. Spaargaren began questioning the defendant. She was sitting near

Erickson, “no more than five feet approximately” away from him. Erickson did not read the

defendant his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and he did not hear any

other police officer do that. Spaargaren did not say anything to Erickson about the defendant

being a suspect in a murder investigation.

¶ 15   In response to a question about when the defendant had last encountered the police,

Erickson heard him say something to the effect of “I was recently stopped by Waukegan” and

“something about DNA.” The defendant then said, “My lawyer said don’t talk about anything.”

Erickson did not hear the defendant say anything else. Erickson specifically denied hearing the

defendant say anything about leaving for Indonesia after being DNA tested, when “they” were

going to “find out that I did it,” or about being “safe because another guy [was] doing the time.”

Asked whether Erickson heard the entire conversation between Spaargaren and the defendant

that Spaargaren described in her written report, Erickson said that he did not; he heard only the

statement that he had described regarding the defendant being stopped by the Waukegan police

and his lawyer telling him not to talk about it.

¶ 16   Cardenas testified next. He and his partner also responded to the domestic battery call on

the evening of April 17, 2012, arriving after Erickson and Spaargaren. The defendant had a

laceration on his forehead and one on his hand; Cardenas believed that the latter was the source

of the blood on his shirt. Cardenas spoke with the defendant to see if he needed medical

assistance. The defendant’s responses were coherent, his demeanor was calm, and there was no

indication that he was under the influence of any alcohol or controlled substance. He did not

complain of being in pain. In fact, the defendant declined to go to the hospital, but Cardenas and

his partner took him there anyway because police procedure required a medical evaluation or a

                                                   -6­
2017 IL App (2d) 140878


written refusal of medical service. At the hospital, he was observed by a doctor, who signed off

on the defendant’s refusal of medical treatment.

¶ 17   Cardenas then brought the defendant to the police station’s processing room. Cardenas

described the room as about 15 by 20 feet, with four computers and two benches. Erickson and

Spaargaren were in the room. Cardenas had not Mirandized the defendant. When he did

Mirandize suspects, he used preprinted forms that were provided to the officers. The defendant

was handcuffed to a bench. He remained conscious and did not complain of any pain or request

water, food, or to go to the bathroom.

¶ 18   Cardenas and his partner remained in the processing room for the next 10 to 15 minutes,

waiting to see if Erickson and Spaargaren needed them for anything else. Erickson was entering

a report into the computer and Cardenas was standing behind him. Spaargaren and the defendant

were seven to eight feet away, having a conversation. Cardenas saw them talking but did not

hear them. Cardenas thought Spaargaren and the defendant spoke for three to five minutes.

¶ 19   Spaargaren testified that, when she responded to the domestic battery call on April 17,

2012, she saw Mathis and the defendant arguing in the alley behind Avenue M. She and

Erickson separated them. Both Mathis and the defendant claimed to have been the victim of

assault. The defendant was taken to the hospital. In the squad car, Mathis told Spaargaren that

the defendant was named as the perpetrator of an assault committed four days earlier, on April

13, 2012. Spaargaren said that she would look into that when they got to the police station.

Mathis also said that the defendant was wanted for a murder investigation in Waukegan. She

said that someone else was serving time for the murder, but the defendant was still wanted in

connection with the case.

¶ 20   When they got to the police station, Spaargaren looked up the defendant and found that

he had indeed been named as the perpetrator of a battery to a woman named Ebony four days

                                              -7­
2017 IL App (2d) 140878


earlier. However, she found no record of a warrant or stop order or anything else indicating that

the defendant was wanted by police in connection with a murder.

¶ 21   Soon afterward, the defendant came into the processing room at the police station and

was handcuffed to a bench in the room. Spaargaren described the processing room as “13 by 12

or 14 by 14” with two computers in it. As she recalled, the only other officers in the room were

Erickson and Cardenas. She sat across from the defendant and had a conversation with him. She

estimated that she was about three feet away from him.

¶ 22   As she knew that he had been accused of an earlier battery, she Mirandized him. She did

this “off the top of [her] head,” telling him that he had the right to remain silent, that anything he

said could and would be used against him in a court of law, and that if he could not afford an

attorney one would be appointed for him. (Upon being asked, Spaargaren said that she had also

told him that he had the right to have an attorney present.) She then asked him if he understood,

and he said yes.

¶ 23   According to Spaargaren’s testimony, her interrogation of the defendant was as follows:

               “A. [Spaargaren:] I said I had gotten some information you are wanted in a

       murder case in Waukegan. He said, ‘What?’ I said, ‘Yes, you are wanted in a murder

       investigation in Waukegan.’ He said ‘I was DNA tested for that, and when they were

       going to find out I did it, I fled to Indonesia. They can’t do anything to me anymore.

       Someone else is serving time for that.’

               Q. [State’s Attorney:] After he made that statement to you, what did you say to

       him?

               A. I said ‘Were you there at the scene? Do you know the person that is serving

       time? How are you involved?’ He said ‘I don’t want to talk about this anymore.’ ”

Spaargaren said that she then stopped questioning the defendant.

                                                 -8­
2017 IL App (2d) 140878


¶ 24   On cross-examination, Spaargaren testified that she had not had the defendant sign a

statement of his Miranda rights; she just recited them verbally based on her 21 years of police

experience. In her written report of her interrogation of the defendant, she did not mention the

other questions she had asked him because she recorded only what he said, “not anything that he

did not say.”

¶ 25   The defendant was the final witness at the hearing. As to the events that occurred before

the police arrived at the scene on April 17, 2012, he said that Mathis had tried to stab him and

had hit him in the head with a pipe. He was taken to a hospital by one of the police officers.

However, when it became clear that he would have to wait a long time to be seen, he signed a

waiver of medical treatment so that he could leave. He was then taken to the police station and

handcuffed to the wall near a bench. The police gave him some paper towels because the wound

on his head had reopened. He sat there for about 10 minutes. Spaargaren then approached him.

¶ 26   Spaargaren said that she had had a conversation with Mathis, who had told Spaargaren

that she was with the defendant earlier when he was stopped by the Waukegan police and was

asked to give a DNA sample. Spaargaren told him that Mathis had also said that he was wanted

for a murder and that, to escape being captured, he went to Indonesia. The defendant testified

that he did not say anything in response to these statements.

¶ 27   Spaargaren then asked the defendant if he was wanted for a murder. The defendant told

her that to his knowledge he was not wanted, and that if she wanted to confirm that by searching

the computers, he wasn’t going anywhere, as he was chained to the bench.

¶ 28   Spaargaren then asked the defendant how his blood had gotten into Reckling’s car. The

defendant responded that he had been told by his attorney not to answer or discuss the case with

anyone. The defendant denied ever telling Spaargaren that “I was DNA tested, and I left to

Indonesia when they found out I did it, but now I am safe because another guy is doing the

                                               -9­
2017 IL App (2d) 140878


time.” During the questioning by Spaargaren, Erickson was five or six feet away at a desk. The

defendant thought there were four or five other officers in the room. It was sort of loud in there.

Spaargaren was talking in a normal tone of voice, loud enough for him to hear. There was one

other individual chained to the bench next to him.        The defendant remained at the police

department until 7 a.m. the next morning.

¶ 29   On cross-examination, the State elicited some background on the defendant. He was 42

years old at the time of the questioning. He had finished three years of college. He had been

read his Miranda rights in the past. Asked if Spaargaren read him his Miranda rights, the

defendant said, “If she did, I didn’t hear her,” and said that he did not recall anyone else reading

him his rights, either. Spaargaren’s questioning of him was brief, lasting less than five minutes,

and neither she nor any other police officer threatened him in any way or used any physical force

on him. He did not have any difficulty understanding Spaargaren’s questions. He was not using

drugs that day.

¶ 30   The State then questioned the defendant about his interaction with Mathis earlier that

night. The defendant said that he had last seen Mathis eight or nine months before then, on the

day that he was stopped by the Waukegan police. He had gone to Indonesia, leaving July 4,

2011, and returning in September. He had not seen Mathis after he got back until the night of the

incident.

¶ 31   The defendant again denied ever telling Spaargaren that he had been DNA tested and left

for Indonesia when they found out he did it. The defendant testified that he had not been aware

that someone else had been convicted of the murder, and had never heard James Edwards’s

name. When Spaargaren asked him about his blood being in Reckling’s car, he had not known

that it was. Spaargaren had not told him that she had spoken with Waukegan police.



                                               - 10 ­
2017 IL App (2d) 140878


¶ 32   On redirect, the defendant said that after he was released by the police he went back to

the hospital. He received five stitches to treat the cut to his forehead. Although he had not taken

any drugs, he had had a small amount of alcohol—“a quarter-pint”—not long before the incident

with Mathis.

¶ 33   Before hearing closing arguments at the hearing, the trial court noted that, although the

defendant’s motion had been titled as a motion in limine rather than a motion to suppress his

statement, much of the evidence presented was the same as would have been presented for a

hearing on suppression. The trial court asked the parties to address the issue of voluntariness in

addition to their other arguments.

¶ 34   In its closing argument, the defense noted that its motion was based on the failure of the

police to videotape the questioning of the defendant. According to the testimony, the police had

had that capability, and Spaargaren’s questioning of the defendant constituted “custodial

interrogation” under the recording statute.       The defense also noted that there was no

corroboration for Spaargaren’s testimony that she had Mirandized the defendant before

questioning him: neither the defendant nor the other officers present nearby heard any Miranda

rights read to him, and there was no written waiver signed by the defendant. As to the statement

allegedly made by the defendant (regarding the defendant fleeing to Indonesia after he was DNA

tested and “they were going to find out I did it”), again there was no proof other than

Spaargaren’s word that he had made such a statement: the defendant denied it, and Erickson did

not hear any such statement. The defense argued that this was exactly the situation the recording

statute was enacted to prevent.

¶ 35   Regarding voluntariness, the defense reviewed the factors listed in People v. Slater, 228

Ill. 2d 137, 160 (2008) (as quoted in People v. Harper, 2013 IL App (4th) 130146, ¶ 20): “the

totality of the circumstances surrounding the statement, including: (1) the defendant’s age,

                                              - 11 ­
2017 IL App (2d) 140878


intelligence, education, experience, and physical condition at the time of the detention and

interrogation; (2) the duration of the interrogation; (3) the presence of Miranda warnings; (4) the

presence of any physical or mental abuse; and (5) the legality and duration of the detention.” Of

these factors, the defense conceded that many favored a finding of voluntariness, but stressed the

defendant’s head wound, his consumption of some alcohol earlier that evening, and the evidence

that he did not receive any Miranda warnings. The defense also noted that the trial court must

consider the separate factor of the reliability of the statement, and argued that the factors it had

mentioned earlier indicated that the statement was suspect.

¶ 36   The State’s closing argument conceded that there had been custodial interrogation of the

defendant as defined in the recording statute and that the statement had not been recorded, and

thus the defendant’s statement was presumed inadmissible. The State argued that the statement

should nevertheless come in under two of the statutory exceptions: subsection (e)(viii), which

permits the use of statements “given at a time when the interrogators are unaware that a death

has in fact occurred”; and subsection (f), which provides that the presumption of inadmissibility

can be overcome by “a preponderance of the evidence that the statement was voluntarily given

and is reliable, based on the totality of the circumstances.” 725 ILCS 5/103-2.1(e)(viii), (f)

(West 2010). As to the first exception, the State argued that Spaargaren had not been able to

confirm Mathis’s story regarding the Waukegan murder investigation by the time she questioned

the defendant, so she was not aware that a death had occurred. As to the second exception, the

Slater factors favored a finding of voluntariness—the defendant was middle-aged, educated, and

despite the lacerations to his head and perhaps his hand, he understood the questions and

answered them coherently. The recording statute was enacted to prevent coercive tactics by the

police, and here the defendant did not claim that any such coercion occurred. The State also

argued that Spaargaren’s testimony that she verbally gave him Miranda warnings was

                                               - 12 ­
2017 IL App (2d) 140878


“unimpeached.” Thus, the State argued, the defendant’s statement was voluntary and reliable.

In rebuttal closing, the defense noted that, in Harper (a case involving the recording statute), the

reviewing court had determined that the defendant’s unrecorded statement was reliable based in

part on a comparison with prior recorded statements by the defendant, which corroborated the

unrecorded statement.     Here, however, there were no such prior statements.          Instead, the

defendant had declined to make a statement, but one police officer claimed that he did make one.

Thus, there was no proof of reliability.

¶ 37   The trial court denied the motion in limine. It found that the police had taken the

defendant into custody. The police provided the defendant with the opportunity to be seen by a

doctor, but the defendant refused treatment. The court found that the defendant’s recall of the

events of that evening was detailed and indicated that he was not suffering the effects of any

intoxication. The court also stated that it found the defendant’s “recollection of events certainly,

in my view, and based upon what I observed during the course of this hearing, slanted to his

particular point of view and to what he perceives to be in his best interest.” The court did not

indicate which specific points of the defendant’s testimony it considered biased by self-interest.

The court repeated that the defendant “certainly indicated in great detail all of the facts

concerning his evening with the Chicago police.”

¶ 38   The trial court found that the defendant had been transported to a police station where he

was handcuffed “to a bar in an interrogation room.” It found that “[t]here were a number of

individuals that were present during the time that Mr. Whitfield was present along with the

police,” commenting that it found “the officer’s testimony on this point to be extremely clear and

credible.” It then continued, “It appears that Mr. Whitfield was Mirandized at that time; and the

officer engaged in some general questioning of Mr. Whitfield, which was extremely short in

duration.”

                                               - 13 ­
2017 IL App (2d) 140878


¶ 39   The trial court indicated that its ruling was based primarily on subsection (f) of the

recording statute, under which the presumption of inadmissibility can be overcome by evidence

that the statement was voluntary and reliable considering the totality of the circumstances. It

then reviewed the Slater voluntariness factors, finding that the defendant’s age, intelligence, and

education supported a finding that the statement was voluntary and that the defendant’s physical

condition had not prevented him from understanding the situation despite the fact that his

forehead wound later required five stitches. The interrogation was brief and, as the court had

noted earlier, it found that the defendant had been Mirandized.

¶ 40   The court commented that, although voluntariness and reliability were separate inquiries,

they overlapped in terms of the evidence that it should consider. It concluded:

               “Under these circumstances, based on all of those facts that I have enumerated;

       based on the fact that I don’t find anything to indicate in the record that Mr. Whitfield

       was either intoxicated, suffering from some type of physical disability, was subjected to

       any type of undue coercion or any type of lengthy custodial interrogation that would

       render his statements somehow involuntary or somehow trigger the fact that they should

       be suppressed as being anything other than voluntary; I find the record simply devoid of

       anything that would support that type of conclusion.

               The only thing that remains is whether or not I find that this statement is

       sufficiently voluntary and reliable such that it can be admitted or overcome the

       presumption of inadmissibility.

               I simply find that the State has overcome the presumption of inadmissibility by

       establishing by a preponderance of the evidence that defendant’s statements were both

       voluntary and reliable.



                                              - 14 ­
2017 IL App (2d) 140878


               As a result, I find that Section 103-2.1 does not bar the State’s use of the

       statement.

               I also find that given the totality of the circumstances; my view of all of the

       credible testimony that was offered during the course of this proceeding; that Mr.

       Whitfield’s statements were knowingly and voluntarily made after he was appropriately

       Mirandized.”

¶ 41                                          B. Trial

¶ 42   The defendant had also filed a motion in limine to allow him to elicit information

regarding the other crimes committed by Edwards. This motion was heard prior to voir dire on

the first day of trial, April 21, 2014. The defendant argued that it would be important to present

evidence that Edwards not only confessed to Reckling’s murder, but also confessed to

committing several other robberies and murders around the same time. The State acknowledged

that, under Chambers v. Mississippi, 410 U.S. 284 (1973), the defendant could introduce

evidence that Edwards had confessed to committing the same murder that the defendant was

charged with committing. However, it argued that any evidence regarding Edwards’s other

crimes was simply an attempt to show that Edwards was a robber and murderer and thus that he

had acted in conformity with his prior offenses and had killed Reckling as well. The trial court

indicated that it would defer ruling on the motion in limine until the issue came up at trial.

¶ 43   The trial lasted five days. In its opening statement, the State emphasized the DNA

evidence linking the defendant to the murder: that evidence tied the defendant to blood found at

the scene of the murder (the four droplets on the carpet near the front door of the store) and in

Reckling’s car. The State also mentioned that it would present testimony by Mathis about the

defendant being upset after providing a DNA sample and going to Indonesia not long afterward,

and that Spaargaren would testify regarding the defendant’s statements along the same lines.

                                                - 15 ­
2017 IL App (2d) 140878


The State noted that Edwards had confessed to the murder, but it said that there was “no

evidence to support that” confession; all the DNA matched the defendant. The defendant’s

opening statement conceded that the DNA from the blood in the car matched the defendant’s

DNA and that the DNA from the store rug was consistent with the defendant’s DNA, but

stressed various items of other evidence suggesting that the defendant was not the culprit: the

presence of a white man similar to a former Grand Appliance employee in the area of the store

on the night of the murder (the defendant was not white), and witnesses who saw a white man

changing the tire of Reckling’s car that night.        The defense also suggested that Mathis’s

testimony was neither true nor reliable, as it was inconsistent with known facts and she had a

motive to lie about the defendant’s actions and statements.

¶ 44   The State’s witnesses testified as follows.      Annie Love, a former Grand Appliance

employee, also worked part-time in the office of the church that Reckling attended. Reckling

was active in the church and was often there in the evening. On the evening of December 8,

1994, Reckling came by the church about 8:30 p.m. and Love spoke with him for about 45

minutes. He said that he was returning to the store. She saw him leave the church and get into

his black Lincoln Town Car. Reckling often worked at the store during the evenings, and he

would keep the front door locked when he did so. On cross-examination, Love testified that a

white man named Ian Duffy had worked at Grand Appliance but was let go. She did not know

why Duffy had been terminated or about his relationship with Reckling, but she gave the police

his name during the investigation because his termination occurred not long before the murder.

¶ 45   Stan Binning, a contractor who regularly bought appliances from Grand Appliance,

arrived at the store about 8:15 on the morning of December 9, 1994. The front door was

unlocked, and when he entered the store, he saw signs of a disturbance near the entrance (glass

from a shattered fluorescent light bulb and a ladder lying on the floor). He saw no one in the

                                              - 16 ­
2017 IL App (2d) 140878


store, and he proceeded to a counter near the back where he began to fill out paperwork for a

dishwasher he wanted to purchase. A store employee, Heidi Williams, arrived soon afterward.

She noticed that Reckling’s car was not in its usual place in the parking lot. Reckling usually

arrived about 8 a.m. to open the store. It had snowed during the night before, and there were no

tracks in the snow. When she entered, the front door was unlocked, and she heard a faint alarm.

There were papers scattered on the floor. She called Mark Reckling, Reckling’s son and a co-

owner of Grand Appliance, who directed her to go see what the papers were. They were

customers’ checks, credit card slips, and deposit slips of the type that Reckling would normally

take to the bank in a blue bank bag each evening. However, the bank bag was missing and there

was no cash on the floor. As she began to walk through the store and turn the lights on, she saw

Reckling lying motionless near the refrigerators with blood pooled under his head. She called

911 but was so upset that she had difficulty completing the call. Williams also testified that

Reckling had two sets of keys, as he kept his car keys separate from the business keys.

¶ 46   John Sivia, a delivery driver for Grand Appliance since 1992, testified regarding

Reckling’s business practices. Reckling arrived at the store by 8 a.m. each day. The store closed

at 8 p.m. each night, and that was when Reckling would lock the front door. However, Reckling

often stayed late to do paperwork, and he would take the day’s deposits to the bank on his way

home. Reckling was concerned about his employees. Employees sometimes cut themselves

when moving the appliances; Sivia had cut himself on sheet metal or screws in the past. If an

employee was injured while at a customer’s house, Reckling would pick the employee up and

take him or her to the hospital. He also sometimes allowed employees to drive his car. The

defendant was never employed by Grand Appliance to Sivia’s knowledge, but he could have

been a customer who came to the store; Sivia would not have known if he was.



                                              - 17 ­
2017 IL App (2d) 140878


¶ 47   On December 8, 1994, the day before Reckling’s body was found, Sivia borrowed $20

from Reckling. He saw Reckling’s wallet then; it was full of cash and probably had several

hundred dollars in it. Reckling kept his wallet in his left rear pants pocket.

¶ 48   On December 9, 1994, Sivia drove by Reckling’s house at about 8 a.m. on his way to

work. Reckling’s Lincoln Town Car was not in the driveway and the snow was undisturbed.

When Sivia arrived at the store, Reckling’s car was not there either, and again there were no

tracks in the snow. Sivia waited for a few minutes but did not see anyone. He went back to

Reckling’s house and knocked on the door, but there was no answer. He then returned to the

store, where he eventually saw Binning moving near the entrance to the store. He went into the

store, where Williams was trying to call 911. He described the scene at the store in the same

way as Binning and Williams. When he saw Reckling’s body, he saw that Reckling was wearing

the same clothing he had been wearing the day before. Reckling had a jacket on, as if he had

been preparing to leave the store.

¶ 49   Mark Reckling testified that his father was 71 years old at the time of his murder. Mark

co-owned Grand Appliance with his father. The company had three stores. The Waukegan store

was the main store and his father oversaw that store. In 1994, an alarm was installed in the

Waukegan store but Mark found out later that it was never hooked up to call the police

department because of a technical glitch. If the alarm went off, it would sound very loudly in the

store for about 15 minutes, and then it would switch to a quieter sound just to indicate that it had

been triggered.

¶ 50   On December 8, 1994, his father left the store about 6 p.m. to pick up Mark’s daughter

from her music lessons. His father brought her to Mark at the store and then went to church.

Mark left the store about 8 p.m. He turned the lights off and locked the front door, but thought

he did not set the alarm because he knew that his that father would be returning.

                                                - 18 ­
2017 IL App (2d) 140878


¶ 51   An employee called Mark about 8:40 a.m. the next morning, wondering where his father

was. He eventually went to the store. When he arrived, the police were there and they would not

let him in at first. The police showed him checks that had been retrieved from the floor of the

store; the checks had been stamped on the back so that they were ready to be deposited. At trial,

Mark was shown deposit slips that had been gathered from the store on December 9, 1994. He

identified them and testified that they indicated cash deposits of $1700. Mark testified that his

father also carried cash in his wallet, and that his father wore his jacket only when he was

outside, not while he was working in the store. On cross-examination, Mark testified that he

occasionally drove his father’s car. He first testified that it was “very, very rare” that anyone

else drove that car, but he was impeached with prior testimony that “other people drove the car

quite often.” It was very possible that employees could get hurt and bleed while working in the

store, for instance while opening cartons, but Grand Appliance had never employed the

defendant.

¶ 52   Witnesses connected with the initial investigation testified as follows. Lou Moore, a

Waukegan police officer, responded to the scene and spoke with some of the witnesses. He

knew Reckling personally and was able to recognize him as the victim. Steven Jones, an

evidence technician with the Waukegan police, also responded to the scene. He secured the

scene and then began gathering evidence. He found no evidence of forced entry at the front

entrance to the store, although there was broken glass from a shattered fluorescent light bulb. He

took fingerprints from the inside and outside of the front doors. Jones then moved to the location

of Reckling’s body. He observed wounds to Reckling’s scalp and head. He found blood under

Reckling’s head and also blood spatters on a nearby refrigerator door, along with gouges in the

door, which he believed were made by a metal object. Reckling’s clothing was torn: his right



                                              - 19 ­
2017 IL App (2d) 140878


pocket was inside out and had been torn away, and his jacket pocket had been ripped. A set of

keys was lying near the body.

¶ 53   Jones and another evidence technician crawled from the body toward the front entrance,

looking for blood and fibers. On a carpet near the front door, he found four “droplet-type” stains

that he believed could be blood. He cut out pieces of carpet containing the stains and placed

them into envelopes to take to the police station, where they would be allowed to dry before

being sealed in evidence envelopes.

¶ 54   Mark Witek, a forensic pathologist with the Lake County coroner’s office, performed

Reckling’s autopsy on December 9, 1994. He observed three sets of parallel lacerations on the

right side of Reckling’s head, a bruise near his right eye, and a bruise on his shoulder. An X-ray

revealed that both bones in Reckling’s left forearm were broken. The lacerations suggested that

Reckling had been struck three times with a heavy, somewhat irregular weapon with squared

sides. It could have been a gun, although the injuries were consistent with many weapons. The

autopsy of the skull showed fractures and depressions of the skull bones. There was extensive

bleeding into the brain on the right side and bleeding of the brain itself on both sides. He found

no foreign material such as wood splinters in the wound.

¶ 55   Margaret Miller testified that she lived on the north side of Chicago in 1994. On about

December 10, she noticed a black Lincoln Town Car parked in front of her house. She observed

it for the next week or two, during which time it was not moved. She could see grocery bags

through the back windows. Eventually, she called the police because she believed that it had

been abandoned.

¶ 56   James Moore worked for the Illinois State Toll Highway Authority, doing highway

maintenance. On December 21, 1994, he was working with James Beake, cleaning debris from

the edge of the roadway in their assigned section, which was the stretch of I-94 from the

                                              - 20 ­
2017 IL App (2d) 140878


Wisconsin state line south to Lake Cook Road. Beake was driving while Moore looked for

debris from the passenger seat of their truck. He saw a wallet in the grass about 10 to 12 feet

from the side of the road near the ramp from Route 60. They stopped and he retrieved the wallet.

The wallet contained Reckling’s driver’s license. Moore had read of the murder and recognized

the name. He placed the wallet on the dashboard without looking through it any further and

called the Illinois State Police.

¶ 57    According to a stipulation read into the record at trial, if called to testify, Beake would

state that on December 9, 1994, he was picking up trash along southbound I-94 and found a tire,

a rim, a car jack, and jumper cables along the ditch line at the entrance ramp from Route 60. The

jumper cables were later identified as having been in the trunk of Reckling’s car, and the

remaining items were from the car as well. None of the items had any blood on them.

¶ 58    James McCarthy, a Waukegan evidence technician, was called to the murder scene on

December 9, 1994. He searched a two- to three-block radius around the Grand Appliance store

for evidence connected to the murder and also went up to the store roof to see if he could see any

evidence, but he did not find any. On December 19, 1994, he traveled to Chicago to retrieve a

black Lincoln Town Car. When he arrived, the car was locked. The right rear tire did not match

the other three tires and appeared to be a spare tire. The car was loaded onto a flatbed tow truck

and taken to the Waukegan police department, where it was turned over to the Northeastern

Illinois Regional Crime Laboratory. Two days later, he and his team responded to a report of a

wallet, tire, and rim being found near an entrance from Route 60 onto I-94. His team searched

the entire area but did not find any additional evidence.

¶ 59    Waukegan police detective Donald Meadie was assigned to the murder and submitted the

request that all local law enforcement agencies in Lake, Cook, and McHenry counties be notified

of Reckling’s missing Town Car. On December 19, 1994, he went to Chicago to retrieve the

                                               - 21 ­
2017 IL App (2d) 140878


Town Car, which had been reported abandoned. He found it locked with a spare tire on the right

rear wheel. He could see grocery bags in the back. He later investigated and found that the

groceries came from Franklin Foods in Waukegan. Mark Reckling told him that the victim

shopped there and often bought those items. On December 21, 1994, Meadie went to the

intersection of Route 60 and I-94 because some tollway workers had found a wallet, tire, rim,

and tire jack alongside the road there. The tire and rim matched the other wheels of the Town

Car he had retrieved. Some jumper cables and a basket of clothes were also recovered from the

area. The next day he returned to the area. The police erected a roadblock and passed out flyers

asking for information regarding any sightings of a person changing a tire on a Lincoln Town

Car at that location on the night of December 8, 1994.

¶ 60   Jason Howell, a painter, testified that he was working at Hawthorn Mall on the night of

December 8, 1994. At about 11:30 p.m. or midnight, he drove home along Route 60 and took

the ramp onto southbound I-94. He passed two cars pulled over onto the shoulder, one behind

the other. The rear car was a black Lincoln. Someone wearing black clothes and a white hat was

bending over near the rear of it. Howell did not see the person’s features. The car in front was a

red compact car. As he passed, a white man in his thirties was getting out of that car.

¶ 61   William Wilson, a toxicologist working for the Cook County medical examiner, testified

as an expert. In 1994, he was working at the Northeastern Illinois Regional Crime Laboratory,

doing serology (the study of blood and bodily fluids) and work with firearms. In 1994, the lab

was not doing DNA testing. Rather, the lab performed tests that could identify blood type (A, B,

AB, or O) and the presence of certain genetic markers for blood enzymes. These types of tests

were still considered scientifically valid, but they had been surpassed by DNA testing, which

could identify as many as 70 variations instead of perhaps 3.



                                              - 22 ­
2017 IL App (2d) 140878


¶ 62   On December 19, 1994, Wilson and others from the lab traveled to the Waukegan police

department to examine a 1993 Lincoln Town Car that had been brought in. The car was locked,

and while they waited for a locksmith to arrive, they processed the outside of the car for

fingerprints and trace evidence. After the car was unlocked, they inventoried the contents of the

car, taking photos of the interior and trunk before and after the contents (grocery bags and some

debris) were removed. When they opened the trunk, Wilson saw that the spare tire was not in its

customary place; instead, it was mounted on the right rear wheel. The original tire and the tire

jack were missing.

¶ 63   Wilson saw stains that he thought might be blood in three locations: on the driver’s seat,

near the left edge; on the threshold (the floor between the driver’s side door and the seat); and on

the steering wheel. He found no blood in the trunk, on the spare tire, on the passenger seat, on

the cassette tapes found in the car, or on any of the contents of the car. He transferred the stains

he found onto cotton threads, creating several threads for each stain. He also transferred non-

stained areas onto threads for comparison purposes. Wilson detailed the manner in which the

stains were transferred onto the threads and the chain of custody for the threads. The envelopes

containing the threads were sent to the crime lab for testing.

¶ 64   Wilson analyzed the threads in February 1995. Before then, he received additional

evidence: pieces of carpet collected from the murder scene. He transferred the stains from the

carpet onto threads in the same manner as the stains from the car. He also received blood from

Reckling and from Edwards, for comparison purposes. Wilson performed the same analysis on

all of the evidence, using only one of the threads from each stain and one comparison thread. As

to the various stains, he determined that they were all human blood, and he determined the blood

type and the genetic markers present. Through this analysis, he was able to conclude that neither

Reckling nor Edwards was the source of the blood. He stored the remaining threads for future

                                               - 23 ­
2017 IL App (2d) 140878


testing. On cross-examination, Wilson stated that he could not determine the age of any of the

stains in the car and that they could have been created after the murder, when the car was in

Chicago.

¶ 65   Jason Gutke, a detective with the Waukegan police department, testified that he was

assigned to Reckling’s murder case in 2011. The police were looking for the defendant pursuant

to a warrant to take a DNA sample from him, which was issued on June 20, 2011. In trying to

locate the defendant, Gutke visited the defendant’s aunt and uncle, who gave him the defendant’s

cell phone number. On June 24, 2011, he received information that the defendant’s cell phone

was within range of a cell tower near Route 41. Two Waukegan police officers, Zupec and

Ulloa, pulled over the truck that the defendant was driving. Gutke and his partner were the

backup. Gutke went to the passenger side window, where he saw a woman later identified as

Mathis. He asked her to get out and to get into the back of his police car; the defendant was

placed in the other police car. Both cars drove to a nearby hospital, where Gutke, Zupec, and

Ulloa accompanied the defendant in to have a buccal swab for DNA taken. Gutke’s partner

remained in the police car with Mathis. The police then returned the two to the truck, which

drove off. There was no warrant for the defendant’s arrest. Jeff Ferdina, a Waukegan police

evidence technician in 2011, testified as to the chain of custody of the buccal swab taken from

the defendant.

¶ 66   Kenneth Pfoser, the DNA technical leader at the Northeastern Illinois Regional Crime

Laboratory, also testified as an expert. He gave a lengthy explanation of how DNA information

was stored on the DNA chain, how DNA was extracted from samples, and how it was tested.

Pfoser analyzed the DNA from the stains in the car, the stains on the carpet, Reckling, Edwards,

and the defendant. There were 15 loci of DNA information. As to the car stains, he was able to

retrieve DNA information for all 15 loci from the stains on the driver’s seat and the threshold.

                                             - 24 ­
2017 IL App (2d) 140878


This DNA matched the defendant’s DNA. The odds of such a match occurring randomly would

be one in 22.3 sextillion African Americans, or the population of about one trillion planet earths.

The DNA from the carpet stains yielded information from 14 out of 15 loci. This DNA was

consistent with the defendant’s DNA, and the chance of such a similarity occurring randomly

was astronomical, but Pfoser did not use the term “match” unless all 15 of the loci were present

and could be compared. As to the steering wheel stain, Pfoser was able to obtain information

from only two loci. The defendant could not be excluded as the source of this DNA information,

but the odds of a random match were higher, one in 145 African Americans. Both Reckling and

Edwards were excluded as the source of the DNA from the carpet and the car stains.

¶ 67   Spaargaren testified that she encountered the defendant and Mathis on the night of April

17, 2012, when she and her partner responded to a call of domestic battery. Mathis was brought

to the police station in their squad car. On the way, Mathis told Spaargaren that the defendant

was wanted for a murder in Waukegan. Spaargaren took Mathis to a processing room in the

police station. Mathis was no longer in that room when the defendant was brought in about 30

minutes later in handcuffs. Spaargaren had not spoken with any other police officers at that

point; she knew only what Mathis had said.

¶ 68   Spaargaren testified that, before she began questioning the defendant, she Mirandized

him “from memory,” and she recited what she had told him. The defendant said that he

understood. Spaargaren asked the defendant if he was wanted for a murder in Waukegan, and he

said “What?” She repeated the question. She testified that he then said, “they DNA tested me

for a murder in Waukegan, and when I found out they knew that I did it, I left out to Indonesia.”

He then said that he did not want to talk anymore and she stopped asking him questions. When

she questioned the defendant, he was about three feet away from her. There were other officers

nearby. The conversation lasted five or six minutes.

                                              - 25 ­
2017 IL App (2d) 140878


¶ 69   On cross-examination, Spaargaren stated that she had been trained in interrogation

techniques in 2008. She admitted that she did not videotape the defendant’s statement, but

asserted that she was not legally required to do so because she was a patrol officer, not a

detective. During this exchange with the defendant’s attorney, Spaargaren nonresponsively

inserted the fact that the defendant was wanted for a battery when she questioned him.

Spaargaren conceded that, although she had prepared a report that evening in which she noted

the defendant’s statements, she did not write down her questions or the defendant’s statement

that he did not want to talk further. In her report, she wrote: “subject when questioned *** stated

‘I was DNA tested and then left to Indonesia when they found out I did it.’ ” According to

Spaargaren, this was “word for word” what the defendant said. This written version of the

statement differed slightly from her earlier testimony regarding the statement.

¶ 70   The final State witness was Mathis. She testified that she began dating the defendant in

April 2011. He was a truck driver and she would sometimes accompany him on his route. On

June 24, 2011, they were pulled over by the police, who took them to the hospital. The

defendant entered the hospital and was inside for 45 minutes to an hour. They were then driven

back to the truck. When the defendant got into the truck and resumed driving, he began shaking,

smoking cigarettes, and even crying. She asked him what was wrong.

¶ 71   According to Mathis, the defendant told her all of the following as he drove to Chicago.

He said that he had killed someone a long time ago, maybe 17 years ago. He had been doing

heroin that day and had been looking for someone to rob. At an appliance store in Waukegan, he

robbed a man and hit him on the head with a gun three times. The defendant got a cut on his

hand. The man was 71 years old. He took the man’s wallet, the man’s car, and some cash that

was in a register. He drove off toward Chicago but he got a flat tire. He had to stop and flag

someone down to help him change it. He later abandoned the car. Mathis testified that, after he

                                              - 26 ­
2017 IL App (2d) 140878


told her all of this, he drove the truck to a Jewel and left it in the parking lot, where he had

someone pick him up. Mathis left separately.

¶ 72   The defendant called Mathis three days later and asked her to check the Internet to see if

he was wanted for the murder. She “told him no.” He called her a couple of weeks later and

asked her the same thing. She checked the Internet and did not find anything.

¶ 73   In July 2011, he called her and said that he was in Indonesia. After that, she went to the

police to report what he had told her. (Asked why she had waited, she said that she was afraid to

contact the police before then.) On July 19, 2011, she met with two Waukegan police officers,

Detectives “Andy” and Zupec, and told them what the defendant had said. They asked her to

write out a statement, which she did. They also showed her photos and she identified someone.

At some point, she looked up the crime on the Internet and found out that an old man had been

robbed at a store.

¶ 74   She did not see the defendant again until April 2012, when she saw him in Chicago, in

the evening. The police were called, and she went with a female police officer to the police

station. She told the officer that the defendant was wanted for murder.

¶ 75   On cross-examination, Mathis agreed that she had told the Waukegan police officers that

the defendant said that on the day of the murder, he took a bus to Waukegan after getting off

work. At that time, he lived and worked in Evanston. The defendant also told her that he had a

gun wrapped in a cloth. Mathis gave contradictory testimony about whether the defendant had

boarded the bus with the gun, saying first that he had not and then that he had. She repeated that

the defendant had told her that the victim was 71 years old and that the defendant had hit him

three times, although she did not report those facts in her written statement to the police. (In her

police statement, she stated that the defendant had said he struck the man twice on each side of

the head.) She stated that she told the police that the defendant abandoned his truck after the

                                               - 27 ­
2017 IL App (2d) 140878


June 2011 DNA test, although that was not in her statement either. Mathis testified that she did

not find out that the defendant had married a woman in Indonesia until after she spoke with the

Waukegan police. However, she was impeached with her written statement, which indicated that

she had found out earlier that day about the marriage through a Facebook post. Her written

statement also indicated that she had looked up the crime on the Internet before contacting the

police.

¶ 76      During the April 2012 altercation between herself and the defendant, she hit him in the

head with a pipe because he had tried to cut her. At the police station, she told the woman police

officer “out of self-defense” that the defendant was wanted for murder, even though she did not

know whether that was true. The woman officer told her that they did not “have anything on

him.” At that point, Mathis had already read the information about the case. Mathis told the

officer to check the Internet and told her about the defendant having “blood” taken for a DNA

test.

¶ 77      Before resting, the State read various stipulations into the record. The parties stipulated

that the murder scene, the checks and deposit slips recovered at the scene, Reckling’s car, and

the items associated with the car were all checked for fingerprints.            One fingerprint of

evidentiary value was recovered from each of the following items: the checks and deposit slips,

the car, and the jumper cables recovered from the side of the highway. None of these three

fingerprints matched the defendant, Reckling, Edwards, or Duffy (the former Grand Appliance

employee). Of the fingerprints having evidentiary value from the murder scene, three matched

Reckling, and none matched the defendant, Edwards, or Duffy.

¶ 78      The defense presented the testimony of Michael Wales. On December 8, 1994, he was

working at the Deerpath Inn in Lake Forest, with his then-girlfriend, Holly, now his wife. He

left work about 10:30 that evening, with Holly following in a separate car. He drove toward his

                                                - 28 ­
2017 IL App (2d) 140878


home along Route 60 and then turned onto the ramp for southbound I-94 at about 10:45. He saw

a black car pulled over onto the shoulder. It was the only car on the shoulder. The only person

he saw was a white male wearing a hoodie, who was by the trunk.               He did not see the

passenger’s side of the car or any flat tires.

¶ 79    When Wales received the subpoena to testify at the trial, he recognized the defendant’s

name. They had been in culinary school together in Evanston in 1993. Wales had not seen or

heard from the defendant since then. Wales was positive that the person he had seen near the car

in 1994 was not the defendant; the person he saw was white and the defendant was not. Holly

Wales then testified consistently with Wales about seeing a “dark nice car, a larger style” on the

shoulder of the I-94 ramp as they drove home on December 8, 1994.

¶ 80    After the Waleses testified, there was a lengthy discussion out of the presence of the jury

regarding whether the defense could elicit evidence of the other crimes committed by Edwards,

in the course of presenting evidence about Edwards’s statement that he murdered Reckling. The

defense argued that it should be permitted to introduce the other-crimes evidence as part of

showing how Edwards came to be in police custody. The State argued that the other-crimes

evidence was irrelevant and would improperly dispose the jury to find that Edwards in fact

murdered Reckling based upon his criminal propensities. The trial court permitted the defense to

elicit evidence of Edwards’s confession but not of Edwards’s other crimes, finding that they

were not similar or relevant to the charges against the defendant.

¶ 81    Michael Quinn, a Waukegan police officer, testified that in January 1996 the police had a

man named James Edwards in custody. Quinn and his partner, Mark Tkadletz, read Edwards his

Miranda rights at about 10:45 p.m. on January 4, 1996, and began questioning him “about

several different matters.” When they brought up the Grand Appliance murder, Edwards said,

“You’re talking death penalty,” and steered the discussion to other things. The questioning

                                                 - 29 ­
2017 IL App (2d) 140878


continued until about 2:30 a.m. At that point, Edwards said that he was tired. He put his head

down on a table and napped for an hour. The police questioned him further after that. About

4:30 a.m., Edwards was allowed to go to a cell to sleep. The police knew that Edwards was a

drug addict. About 9 a.m. that morning, other detectives began questioning Edwards.

¶ 82   Quinn and Tkadletz began questioning Edwards again at about 6 p.m. that day. Quinn

went to speak with Edwards’s wife at one point, and she then called Edwards. After Quinn

returned to the station, Edwards said that he “needed a few minutes” and then told Quinn and

Edwards that he had killed Reckling on December 8, 1994, by hitting him with a wooden table

leg. He had been looking for a place to rob and saw Reckling going into a business, leaving his

car running. Edwards said that he followed Reckling and hit him on the head. He took between

$1300 and $1600, leaving the money bag, and left in Reckling’s car. He drove the car toward

Chicago but the car was messed up and he had to change the tire. He left the car in Chicago

“near Flukey’s.”

¶ 83   On cross-examination, the State elicited inconsistencies between Edwards’s confession

and the evidence at the murder scene. For instance, Edwards said that he saw keys in the

entrance door to the store; that he hit Reckling “in the face”; that he struggled with Reckling in

the back of the store, not in the front near the refrigerators; that he threw the murder weapon, a

table leg, out the window of the car while he was driving on Grand Avenue in Waukegan; and

that he left the car parked in a parking lot, not on the street, near Flukey’s, a restaurant that had

been located at 86th Street and Cottage Grove Avenue in Chicago but had closed 10 years

earlier. Quinn testified that he did not know that all of these statements were contradicted by the

evidence in the case. On redirect, Quinn agreed that a black eye such as the one noted in

Reckling’s autopsy would qualify as an injury to the face. The defense also called Tkadletz, who

testified similarly to Quinn about Edwards’s questioning and his statement.

                                               - 30 ­
2017 IL App (2d) 140878


¶ 84   Truman Prewitt testified that in December 1994 he worked in a Verlo mattress store two

or three blocks away from the Grand Appliance store where the murder occurred. On December

8 at about 7:45 p.m., a white male walked past the mattress store and appeared to be “casing” it

as if he wanted to rob it, looking into both windows and the door, and then walking the other

way and doing it again. Prewitt saw the man from about 30 feet away. The incident made

Prewitt nervous, so he locked the door even though there were still 15 minutes until closing time.

The next day, when he heard about Reckling’s murder, he called the police to report the incident.

They came by and showed him some photos, and he picked one out.

¶ 85   Out of the presence of the jury, the defense advised the court that it wished to call

William Amattey as a witness. Amattey was an attorney whom the defendant had contacted

about filing a petition for the defendant’s Indonesian wife to obtain a visa to enter the United

States. The defense wished to elicit the information that, although the defendant’s first visit to

Amattey’s office occurred in December 2011 (after the defendant returned from Indonesia), the

defendant had first contacted Amattey about one year earlier, in December 2010. The defense

argued that this evidence was important to rebut the inference that the defendant’s travel to

Indonesia showed consciousness of guilt, when in fact the trip was preplanned. The State argued

that the testimony would be hearsay. The defense agreed not to elicit the substance of any of the

conversations between the defendant and Amattey. The trial court accepted the State’s argument

and ruled that it would not permit Amattey’s testimony. The defense then rested its case.

¶ 86   In its closing argument, the State once again emphasized the DNA evidence, which

showed that the blood on the store carpet and inside Reckling’s car matched the defendant’s

DNA. It ridiculed the theory that a 25-year-old man who lived in Evanston would have traveled

on some other occasion to the Grand Appliance store in Waukegan where he was cut and bled on

the carpet, and then broke into Reckling’s car when it was parked in Chicago (without any signs

                                              - 31 ­
2017 IL App (2d) 140878


of forced entry) and bled some more in the car. Noting the defendant’s statements to Mathis and

Spaargaren, the State then argued that there were “two confessions and the flight to Indonesia”

that also showed that the defendant committed the murder. Finally, the State downplayed

Edwards’s confession to the murder, noting that Edwards’s DNA did not match any of the blood

found at the scene or in the car.

¶ 87   The defense emphasized various inconsistencies in the State’s case, including the

witnesses who saw a white man, not an African American like the defendant, changing the tire of

the Town Car on the night of the murder, and evidence suggesting that the murderer knew

Reckling and knew that he kept two sets of keys. As for the DNA, there was no evidence as to

how old it was or when it was deposited in the store or the car. Notably, there was no blood or

fingerprints on the items the murderer would have handled that night, including the rim, the

spare tire, and the tire jack, and the State evidently did not feel confident enough of the DNA

evidence to issue a stop request or a warrant after the police took the defendant’s DNA sample in

June 2011. The defense argued that Mathis was biased against the defendant and had the

opportunity to research the known facts of the case before she spoke with the police. There were

no telephone records to show that the defendant ever in fact called her. Spaargaren was not

credible, either, as her unrecorded interrogation of the defendant was “sloppy” and there were

inconsistencies between her account and Mathis’s testimony. Finally, Edwards had confessed to

Reckling’s murder. In rebuttal, the State argued that the white male seen near the Town Car on

the night of the murder was the person who had stopped to help.

¶ 88   During deliberations, the jury sent out a note asking, in pertinent part: “Can we see

Spaargaron’s [sic] informational report? The one where she quotes him as admitting. Also—she

referenced another report during her testimony, can we see that one too?” The defense attorney

suggested that the jury be told that they had all of the information they needed. The trial court

                                             - 32 ­
2017 IL App (2d) 140878


sent back the message, “You have all of the evidence. Please continue to deliberate.” The jury

convicted the defendant of first-degree murder, finding that he was over the age of 18 and that

the killing occurred in the course of another felony. The jury also found that the victim was over

60 years old. The trial court denied the defendant’s motion for a judgment notwithstanding the

verdict or a new trial and sentenced the defendant to life in prison. Following the denial of his

motion to reconsider the sentence, the defendant filed this appeal.

¶ 89                                      II. ANALYSIS

¶ 90   On appeal, the defendant raises two issues. First, he contends that the trial court erred in

denying his motion in limine to bar evidence of his supposed statement to Spaargaren pursuant to

the recording statute. Second, he contends that certain of the trial court’s other evidentiary

rulings—denying his request to introduce evidence of Edwards’s other crimes and barring the

testimony by Amattey as hearsay—unfairly prevented him from presenting his defense and were

an abuse of discretion. We take each argument in turn.

¶ 91                  A. The Recording Statute and Defendant’s Statement

¶ 92   As noted above, the recording statute bars the use in a murder trial of any statement by

the defendant made during custodial interrogation (as that term is defined in the statute) that was

not electronically recorded. The State concedes that the defendant’s purported statement to

Spaargaren was made during custodial interrogation and was not recorded. Thus, under the

recording statute, the statement is “presumed to be inadmissible” in any criminal homicide

proceeding. 725 ILCS 5/103-2.1(b) (West 2010). However, the State argues that the statement

was properly admitted under two statutory exceptions: subsection (e)(ii), which states that a

statement is admissible if it was not recorded “because electronic recording was not feasible”;

and subsection (f), which provides that the presumption of inadmissibility can be overcome if the

evidence shows that the statement “was voluntarily given and is reliable, based on the totality of

                                               - 33 ­
2017 IL App (2d) 140878


the circumstances.” 725 ILCS 5/103-2.1(e)(ii), (f) (West 2010). The State bore the burden of

proving the applicability of these exceptions. 725 ILCS 5/103-2.1(e) (West 2010); People v.

Harris, 2012 IL App (1st) 100678, ¶ 61.

¶ 93   We may easily dispose of the State’s argument that recording the statement was not

feasible. As an initial matter, we note that the State did not raise this argument before the trial

court. Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113, 127 (2010) (generally speaking, a

reviewing court will not consider an argument that was not presented to the trial court). The

State asserts that a party may defend the trial court’s ruling on any ground supported by the

record as long as that ground is not contrary to its previous arguments. People v. Denson, 2014

IL 116231, ¶ 17. We acknowledge this rule but its application here is doubtful. Spaargaren

testified that she did not record the statement because she believed that, as she was a patrol

officer and not a detective, the recording statute did not apply to her questioning of the

defendant. The clear implication of this testimony is that, even if there had been recording

equipment in the processing room where Spaargaren questioned the defendant, she would not

have used it. Thus, the State’s feasibility argument is fundamentally at odds with Spaargaren’s

testimony. Under these circumstances, Denson does not support the State’s ability to raise the

feasibility argument for the first time on appeal.

¶ 94   Even if we were to consider the argument, however, we would find it meritless. As the

State concedes, the testimony at the hearing on the motion in limine established that there was

recording equipment in the police station where the defendant was questioned by Spaargaren,

even if there was none in the processing room itself. We interpret the term “not feasible” in the

statute to mean that there was no functioning recording equipment in the police station where the

interrogation occurred. Any other interpretation would run counter to the legislative purpose in

enacting the recording statute. It would be absurd to imagine that the General Assembly sought

                                                - 34 ­
2017 IL App (2d) 140878


to require the electronic recording of all homicide-related questioning “that is reasonably likely

to elicit an incriminating response” (725 ILCS 103-2.1(a) (West 2010)), but intended to allow

police to avoid this requirement by simply conducting the questioning in a room that does not

have recording equipment. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 441 (2010)

(in construing statutes, courts “presume that the legislature did not intend absurd, inconvenient,

or unjust consequences”). Accordingly, we reject the State’s argument that it was not feasible

for Spaargaren to record her questioning of the defendant about the Waukegan murder.

¶ 95    The State’s more substantial argument is that the presumption against admissibility was

overcome by evidence that the defendant’s statement “was voluntarily given and is reliable,

based on the totality of the circumstances.” 725 ILCS 5/103-2.1(f) (West 2010). The State bore

the burden of proving this by a preponderance of the evidence. Id. In reviewing the trial court’s

determination of voluntariness and reliability, we apply the same standard of review that governs

the suppression of evidence in other contexts: “We review a trial court’s factual findings using a

manifest-weight-of-the-evidence standard but apply a de novo standard of review to the ultimate

question of whether the evidence should be suppressed.” Harper, 2013 IL App (4th) 130146,

¶ 10.

¶ 96    The factors to be considered in evaluating whether a defendant’s statement was voluntary

are the familiar factors from Slater: the defendant’s age, physical condition, and other factors

affecting his ability to understand the proceedings and the consequences of his choice to give a

statement; and the circumstances of the detention and interrogation, including their duration, the

giving of Miranda warnings, and any indications of physical or mental abuse. Slater, 228 Ill. 2d

at 160. As the defense conceded during the hearing on the motion in limine, many of these

factors favor a finding of voluntariness in this case.



                                                - 35 ­
2017 IL App (2d) 140878


¶ 97   The issue of reliability must be considered separately from voluntariness, however.

Harris, 2012 IL App (1st) 100678, ¶ 66 (emphasizing that whether the defendant’s statement is

reliable “is a separate inquiry from whether it was voluntary”).        This factor addresses the

possibility that a statement that was voluntarily given might nonetheless be unreliable or false.

The reviewing court in Harper outlined some of the factors that can affect the reliability of a

statement:

       “A person who is developmentally disabled or a person who is actively delusional may

       give a statement of his or her own free will, but the voluntary statement may not be

       reliable because of the mental impediments suffered by the individual. Further, the

       statements of a person deprived of food, water, or sleep also may not be reliable because

       that person may be inclined to say anything in order to have those deprivations

       terminated. Hypnosis-induced statements have also been found unreliable.” Harper,

       2013 IL App (4th) 130146, ¶ 22.

¶ 98   In this case, the trial court found the defendant’s statement, as reported by Spaargaren, to

be both voluntary and reliable. In reaching this conclusion, the trial court focused primarily on

the voluntariness factors. When commenting on the reliability inquiry, it noted that the relevant

factors overlapped somewhat with the voluntariness factors.          It stated that there was no

indication that the defendant was “intoxicated, suffering from some type of physical disability,

[or] was subjected to any type of undue coercion” (factors that could affect the reliability of a

statement), but it then returned to the issue of voluntariness, stating that there had not been “any

type of lengthy custodial interrogation that would render his statements somehow involuntary or

somehow trigger the fact that they should be suppressed as being anything other than voluntary.”

¶ 99   We are somewhat troubled by the trial court’s difficulty in keeping the issue of reliability

separate from that of voluntariness. Further, this case presents a different question from most of

                                               - 36 ­
2017 IL App (2d) 140878


the case law relating to the recording statute: that case law involves only situations in which the

defendant admitted making the statement but argued that it should nevertheless be excluded.

See, e.g., People v. Clayton, 2014 IL App (1st) 130743, ¶ 14 (defendant testified that she was

interviewed twice in the same room; the first interview was not recorded while the second one

was); Harper, 2013 IL App (4th) 130146, ¶ 19 (“Everyone agrees defendant voluntarily made

the statements in question,” which were recorded; issue was whether audio malfunction in

certain parts of the recording rendered the remaining portions of the recording unreliable);

Harris, 2012 IL App (1st) 100678, ¶ 17 (defense did not argue that the defendant did not make

the statements testified to by the police; issue was whether she was “in custody” at the time of

the questioning).

¶ 100 Here, by contrast, the defendant denies making the statements at issue (that he had been

“DNA tested” and subsequently went to Indonesia). According to the defendant, he did not

answer Spaargaren’s initial questions about DNA testing and merely said, in response to further

questioning, that he did not believe that he was wanted for murder and that he had been told by

his attorney not to answer questions. Thus, the initial issue confronting the trial court was

whether the defendant made the statements attributed to him by Spaargaren. The evidence on

this point was conflicting. Spaargaren testified that the defendant did make these statements; the

defendant denied that. Erickson, Spaargaren’s partner who was seated near her, also denied

hearing these statements; he heard only something about the defendant “being stopped by

Waukegan” and “about DNA,” and that the defendant’s lawyer had told him not to talk about

anything. Cardenas, who was also present, did not hear any of the interview. (Spaargaren also

testified that she Mirandized the defendant prior to questioning him, while Erickson, Cardenas,

and the defendant all testified that they did not hear any Miranda warnings.)



                                              - 37 ­
2017 IL App (2d) 140878


¶ 101 The reliability inquiry outlined in Harris and Harper is not a perfect fit for a case such as

this, where the existence of the statement itself is challenged. In Harper, the leading case on

reliability, the defendant sought to exclude his statement under the recording statute because,

although the statement was recorded, portions of the recording were inaudible, through no fault

of the State. In concluding that the statement was reliable despite the missing portions, the

reviewing court considered the portions of the recording that were audible, finding that they were

consistent with other admissible statements by the defendant.        Harper, 2013 IL App (4th)

130146, ¶ 23. The court also considered the fact that the State did not contend that the defendant

said anything inculpatory during the inaudible portions; rather, the State simply wished to

present the audible portions as evidence. Id. ¶ 29. Here, by contrast, the State sought to present

evidence of an inculpatory statement allegedly made by the defendant that was unrecorded.

Further, there were no other statements by the defendant to support either the existence or the

reliability of the purported statement. We believe that both of these facts, when coupled with the

lack of corroboration of Spaargaren’s testimony, weigh in favor of a conclusion that the State did

not meet its burden under the recording statute to show that the presumption against admitting

the purported statement was overcome. However, we need not determine conclusively whether

the trial court erred in denying the motion in limine because, even if it did, that error was

harmless.

¶ 102 An evidentiary error is harmless “if it appears beyond a reasonable doubt that the error at

issue did not contribute to the verdict obtained” (In re Kenneth W., 2012 IL App (1st) 101787,

¶ 75) or when no reasonable probability exists that the jury would have acquitted the defendant

absent the error (In re E.H., 224 Ill. 2d 172, 180 (2006)). The defendant argues that his

supposed statement to Spaargaren was clearly important to the resolution of the case, and thus its

admission was not harmless: the State drew attention to the statement in its closing argument,

                                              - 38 ­
2017 IL App (2d) 140878


and Spaargaren’s account of the statement was the subject of the note sent out by the jury. We

agree that the defendant’s purported statement was almost certainly considered by the jury, along

with the other evidence in the case. Nevertheless, the likelihood that excluding the statement

would have changed the outcome of the trial is virtually nil.

¶ 103 By far, the most damning evidence against the defendant was DNA evidence: the

evidence that the DNA from the blood found on the carpet at the murder scene and the blood

found in Reckling’s car matched the defendant’s DNA, a match that was astronomically unlikely

to occur randomly. The jury was faced with overwhelming evidence that the defendant shed

blood both at the entrance to the store and inside Reckling’s car. Although the defense elicited

evidence suggesting that the defendant’s blood could possibly have been shed in those places if

he had been a Grand Appliance customer or an employee, all of the evidence was contrary to this

possibility having actually occurred: the defendant did not live or work near Grand Appliance,

other Grand Appliance employees testified that the defendant was never employed by the

company, and there was no evidence that the defendant was ever a customer.

¶ 104 Further, Mathis testified to an even more detailed confession by the defendant to the

murder. Although Mathis’s testimony was impeached in some regards, it corroborated other

evidence in the case. In light of the compelling nature of the DNA evidence, the lack of any

nonhypothetical explanation for the defendant’s DNA being found at the murder scene and

inside Reckling’s car, and Mathis’s testimony regarding the defendant’s detailed confession to

her, we conclude that there is no reasonable probability that the jury would have acquitted the

defendant even if the motion in limine had been granted.

¶ 105                             B. Other Evidentiary Rulings

¶ 106 The defendant’s second argument on appeal is that he was denied his constitutional right

to present a complete defense by certain other evidentiary rulings by the trial court, barring him

                                              - 39 ­
2017 IL App (2d) 140878


from presenting (1) evidence of the other crimes committed by Edwards and (2) testimony of

Amattey that would have rebutted the inference that the defendant’s travel to Indonesia was

motivated by a desire to avoid being arrested for the murder. “[W]hen a party claims he was

denied his constitutional right to present a complete defense due to improper evidentiary rulings,

the standard of review is abuse of discretion.” People v. Burgess, 2015 IL App (1st) 130657,

¶ 133. A trial court abuses its discretion when its ruling is arbitrary, fanciful, or unreasonable, or

when no reasonable person would take the view adopted by the trial court, or when its ruling

rests on an error of law. People v. Olsen, 2015 IL App (2d) 140267, ¶ 11.

¶ 107                         1. Evidence of Edwards’s Other Crimes

¶ 108 As is required by the due process clause of the United States Constitution (see Chambers

v. Mississippi, 410 U.S. 284, 302 (1973)), the defendant was permitted to introduce evidence that

someone other than him—Edwards—confessed to the murder of Reckling.                    However, the

defendant wished to go further and introduce evidence of other crimes committed by Edwards,

such as the series of robberies that initially led to Edwards’s arrest and questioning.

¶ 109 When this matter arose at trial, the State argued that Edwards’s robberies were not similar

to the Grand Appliance robbery. For instance, Edwards was initially apprehended as he fled

from a robbery at the Roberts Roost motel. In that robbery, he used a replica of a gun to demand

cash, forced the employees into the basement, and pushed a sofa against the basement door.

Thus, the State argued, Edwards’s other robberies were irrelevant to the murder of Reckling.

¶ 110 The defense responded that the State would introduce evidence that Edwards did not

confess to murdering Reckling until almost 24 hours after he was arrested, which would create a

false impression in the minds of the jurors that he was questioned at length solely about the

murder. The defense argued that it needed to be able to counter this false impression. The trial

court agreed with this assertion.     The State suggested a compromise, in which the police

                                                - 40 ­
2017 IL App (2d) 140878


witnesses involved in Edwards’s interrogation would testify that he was questioned at first in

connection with “other matters,” without specifying what those matters were.

¶ 111 The trial court ruled that evidence of Edwards’s other crimes was not relevant to the

defendant’s trial because, based on the arguments presented, those other crimes were dissimilar

and there was no indication that the investigation of the other crimes was intertwined with

Reckling’s murder. However, it cautioned that the State must not elicit evidence suggesting that

Edwards had been questioned solely regarding the murder. The defense then presented the

testimony of Quinn and Tkadletz, who stated that Edwards was questioned at length about “other

matters” prior to giving a statement about Reckling’s murder.

¶ 112 On appeal, the defendant notes that the State was permitted to introduce evidence of

Edwards’s other crimes (three armed robberies) in its trial against Edwards, and this court upheld

the admission of that evidence on the ground that Edwards’s criminal history tended to show that

his confession to Reckling’s murder had not been fabricated by police. People v. Edwards, 301

Ill. App. 3d 966, 980-81 (1998). The defendant argues that he should have been permitted to

introduce that same evidence at his own trial, for the same reason—to substantiate Edwards’s

confession to Reckling’s murder. The defendant notes that, in the State’s opening statement, it

asserted that there was “not one shred of evidence that links Mr. Edwards to this case,” but in

fact there was such evidence—Edwards’s confession. In support of his argument, the defendant

cites People v. Tenney, 205 Ill. 2d 411 (2002), which stated that “ ‘if it is the sort of evidence that

prosecutors regularly use against defendants—then defendants are entitled to use it for their own

purposes.’ ” (Emphasis in original.) Id. at 440 (quoting Lee v. McCaughtry, 933 F.2d 536, 537

(7th Cir. 1991)).

¶ 113 The State responds that its comment regarding “not one shred of evidence” was made in

the context of referring to the DNA evidence of the defendant’s presence at the murder scene and

                                                - 41 ­
2017 IL App (2d) 140878


in Reckling’s car, and thus was understood to mean that no physical evidence linked Edwards to

the crime. It further notes that Chambers created a narrow category of hearsay declarations of

culpability that are admissible for reasons of due process, a category that does not include

collateral evidence such as the other-crimes evidence that the defendant sought to elicit here. It

contends that the evidence of Edwards’s other crimes would simply have created an improper

inference in the minds of the jurors that Edwards had a propensity to commit crimes. Finally, it

argues that the defendant was able to adequately present a defense, not only introducing the fact

of Edwards’s confession but also casting doubt on the identity of the person who changed a flat

tire on Reckling’s car and raising alternate possibilities as to the identity of the murderer, such as

the former employee Duffy.

¶ 114 In considering this issue, we are mindful that evidentiary issues are the province of the

trial court, which is uniquely positioned to determine the relevancy of proffered evidence to the

proceedings at hand. Here, the trial court resolved this issue only after a careful weighing of

competing considerations. We must review that ruling deferentially, finding error only if the

trial court abused its discretion. People v. Sutton, 349 Ill. App. 3d 608, 615 (2004). We note that

the Chambers exception to the general hearsay rule barring the introduction of third-party

declarations of culpability is narrow, applying only where there is “considerable assurance of

their reliability.” Chambers, 410 U.S. at 300; see also Tenney, 205 Ill. 2d at 435 (characterizing

the Chambers exception as narrow). The defense argues that the requisite assurance of reliability

exists here, given our ruling in Edwards that the other-crimes evidence was admissible. We

stress that the admission of evidence in one proceeding is no indication that it should be admitted

automatically in a different proceeding. Accordingly, our decision in Edwards is not dispositive

of the issue raised here.



                                                - 42 ­
2017 IL App (2d) 140878


¶ 115 Moreover, Chambers involved only a third party’s direct statement of culpability for a

crime, not collateral evidence such as the other-crimes evidence at issue here. The cases relied

upon by the defendant are similarly distinguishable. Lee involved a fugitive’s statement that he

had killed the victim and that the defendant had had no part in it, and the reviewing court held

that the trial court had correctly concluded that there were not sufficient indicia of reliability to

bring the statement within the Chambers exception. Lee, 933 F.2d at 538. And while Tenney

mandated the admission of evidence of an inculpatory statement by someone who was initially

convicted of the murder at issue but whose conviction subsequently was vacated, it does not

address the admission of collateral other-crimes evidence. Tenney, 205 Ill. 2d at 441-42.

¶ 116 The case most helpful to the defendant’s argument is People v. Cruz, 162 Ill. 2d 314

(1994), in which the supreme court held that it was reversible error to exclude evidence

regarding the other crimes committed by a third party (Dugan), because those crimes were

similar in significant respects to the murder at issue and thus were relevant to show that Dugan’s

confession to the murder at issue was reliable. Id. at 354. However, the similarity between the

other crimes and the murder was essential to the supreme court’s holding. Id. at 352 (the other-

crimes evidence “was admissible to corroborate [Dugan’s] statements about the Nicarico

murder” because “[t]he requisite degree of similarity [had] been established”). Here, the trial

court found that the other crimes that the defense wished to introduce were not similar to the

Grand Appliance robbery and murder, and the defendant has not argued that this finding was

erroneous. Accordingly, the trial court did not abuse its discretion in barring evidence of

Edwards’s other crimes.

¶ 117                                2. Amattey’s Testimony

¶ 118 The defendant also contends that he was unable to fully present his defense because the

trial court erroneously excluded the testimony of Amattey, the attorney whom he contacted

                                               - 43 ­
2017 IL App (2d) 140878


regarding his Indonesian wife’s entry into the United States. The defendant contends that this

testimony was crucial to rebut the inference that his travel to Indonesia was motivated by a

consciousness of guilt following the taking of his DNA sample. We agree that the trial court

erred in excluding this testimony on hearsay grounds. However, as with the erroneous admission

of the defendant’s unrecorded statement, we conclude that this error was harmless in light of the

overwhelming evidence against the defendant.

¶ 119 When this issue arose at trial, the defense made an offer of proof, stating that it wished to

elicit testimony from Amattey that he had filed a visa petition for the defendant’s Indonesian

wife. Further, although the defendant first came in to see Amattey on December 8, 2011, the

defendant had first contacted Amattey a year earlier seeking information about how to obtain a

visa. This evidence, which would not go into the substance of the defendant’s conversations

with Amattey, would show that the defendant pursued information relating to his trip to

Indonesia well before the DNA sample was taken: “I’m not asking for any comments, statements

or anything. All I would simply be asking is *** Mr. Whitfield contacted you a year prior to

December 8th, 2011? Yes. He retained you for immigration purposes? Yes. That’s it.” The

State objected to allowing Amattey to testify, arguing that it would permit the defendant to

“testify” about his motives for going to Indonesia through Amattey’s testimony, without taking

the stand himself. The State also argued that any testimony about why the attorney was retained

would be hearsay.

¶ 120 The trial court refused to permit Amattey to testify on the ground that all of the evidence

the defendant sought to present would be hearsay, including the date of the defendant’s first

contact with Amattey and the tasks that Amattey performed for the defendant.                  This

determination was error.



                                              - 44 ­
2017 IL App (2d) 140878


¶ 121 Hearsay is an out-of-court statement that is offered to establish the truth of the matter

asserted. Ill. R. Evid. 801(c) (eff. Jan. 1, 2011); In re Estate of DeMarzo, 2015 IL App (1st)

141766, ¶ 19. Much of Amattey’s proffered testimony was not hearsay, as it consisted of facts

personally known to him, not statements made to him. The date on which the defendant first

contacted him, the date of the defendant’s first office visit, and a broad description of the work

that Amattey performed at the defendant’s request (such as the fact that Amattey filed a visa

petition for the defendant’s wife) are all matters that are not hearsay. Indeed, on appeal, the State

does not offer any argument as to why Amattey’s testimony on these matters would have been

hearsay, instead suggesting that it might have been difficult for the defense to elicit the testimony

without delving into the substance of Amattey’s conversations with the defendant. This is mere

speculation, however, and any such difficulty would have been more appropriately addressed

through objections to specific questions, not the wholesale barring of testimony. Further, as part

of his fundamental right to present a defense, the defendant had a right to present evidence

tending to prove that he did not flee from consciousness of guilt. People v. Manion, 67 Ill. 2d

564, 576 (1977). Thus, the trial court’s refusal to permit Amattey to testify was an abuse of

discretion.

¶ 122 Nevertheless, this error was harmless in light of the other evidence against the defendant.

Even if the defendant had been wholly successful in countering the State’s argument that his

travel to Indonesia constituted a flight from justice that indicated a consciousness of guilt (see

People v. Lewis, 165 Ill. 2d 305, 349 (1995)), the evidence of the defendant’s commission of the

murder was overwhelming, including the DNA evidence as well as Mathis’s account of the

defendant’s confession to her. People v. Harmon, 2015 IL App (1st) 122345, ¶ 103 (even trial

errors that encroach on constitutional rights do not require reversal where they are harmless

beyond a reasonable doubt).

                                               - 45 ­
2017 IL App (2d) 140878


¶ 123                                  III. CONCLUSION

¶ 124 Although the trial court erred in failing to exclude the defendant’s purported statement to

Spaargaren and in barring the testimony of Amattey, those errors were harmless beyond a

reasonable doubt and there is virtually no likelihood that, had these errors not occurred, the jury

would not have convicted the defendant of first-degree murder. Accordingly, we affirm the

judgment of the circuit court of Lake County.

¶ 125 Affirmed.




                                                - 46 ­
