People v. Brown
| Decision Date | 22 June 2007 |
| Docket Number | No. 1-05-0995.,1-05-0995. |
| Citation | 870 N.E.2d 1033 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Henry BROWN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Deputy Defender, Tomas G. Gonzalez, Assistant Appellate Defender, Chicago, for Appellant.
Richard A. Devine, State's Attorney, James E. Fitzgerald, Mary P. Needham, Susan Schierl Sullivan, Jacqueline B. Carroll, Assistant State's Attorneys, Chicago, for Appellee.
This case comes before us for a second time. The first appeal resulted in a remand for a new trial. On retrial a jury found defendant, Henry Brown, guilty of the aggravated kidnaping and aggravated battery of Gaddis Johnson. Defendant now argues that section 115-10.4 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-10.4 (West 2004)) did not authorize the introduction into evidence of testimony Johnson gave at defendant's bond hearing. We agree with defendant and therefore we reverse the conviction and again remand for a new trial.
On March 8, 1995, two persons came to the apartment Johnson shared with his sister and her children. Johnson left with the two persons. Johnson returned home two days later. Burn marks and other wounds covered much of Johnson's body. Following discussions with Johnson, police arrested defendant. The court released defendant on a bond of $125,000, conditioned on an order not to contact Johnson or his family.
Prosecutors petitioned for a hearing on violation of bail bond, alleging that defendant contacted Johnson and that defendant possessed heroin. At the hearing, begun on August 9, 1996, Johnson testified in great detail, over a continuing relevancy objection, about the kidnaping and battery. He also swore that defendant contacted him and offered him cash and cocaine in exchange for testimony favorable to defendant.
The court delayed cross-examination of Johnson until August 13, 1996. Defense counsel limited his cross-examination to the testimony regarding defendant's contact with Johnson after defendant's release on bond. When the court excused Johnson, the prosecutor asked, "Judge, is counsel waiving his right to complete a meaningful cross of Mr. Johnson?" The attorneys discussed with the court the ramifications of the question:
Defense counsel's subsequent cross-examination of Johnson occupied the next 35 pages of record.
Johnson died in 1997 from causes unrelated to the offense at issue. Defendant's trial began in 1998. The trial court denied defendant's motion to bar use of Johnson's prior testimony at trial. The jury found defendant guilty and the court entered judgment on the verdict.
Defendant appealed, arguing that the court erred by admitting Johnson's testimony into evidence. We analyzed the admissibility of the testimony under the standards enunciated in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980). We said:
"Where there was adequate opportunity to cross-examine the witness at the prior hearing and defense counsel took advantage of that opportunity, the transcript bears sufficient indicia of reliability and affords the trier of fact a satisfactory basis for evaluating the truth of the prior statement. [Citation.] The opportunity to cross-examine is considered adequate and effective only when the motive and focus of the cross-examination at the time of the initial proceeding were the same or similar to that of the subsequent proceeding. People v. Rice, 166 Ill.2d 35, 41 651 N.E.2d 1083 (1995).
The motive and focus of the cross-examination at Henry's bond rehearing differed significantly from that of his trial. The purpose of the bond rehearing was to determine whether Henry had violated the conditions of his bond by contacting Gaddis. Although the court improperly expanded the scope of this hearing by permitting the State to question Gaddis extensively about the crime itself, the motive of the defense during cross-examination remained limited to the allegations of Henry's bond violations. As such, we find that Henry did not have an adequate opportunity to effectively cross-examine Gaddis at the bond rehearing and that the admission of the testimony violated the confrontation clause." People v. Brown, No. 1-98-1411, slip op. at 9, 322 Ill.App.3d 1042, 278 Ill.Dec. 321, 798 N.E.2d 423 (2001) (unpublished order under Supreme Court Rule 23).
In a footnote, we added:
"While we are aware of the statutory hearsay exception for deceased witnesses (725 ILCS 5/115-10.4 (West 2000)), we make no comment as to its applicability to this case since neither party raised the issue on appeal." Brown, No. 1-98-1411, slip op. at 9 n. 1.
On remand prosecutors moved for permission to introduce Johnson's testimony into evidence pursuant to section 115-10.4 of the Code. The prosecutor said:
The court held:
The court allowed the prosecutor to read Johnson's testimony to the jury on retrial.
Johnson's niece testified that on March 8, 1995, she saw defendant and his wife come to the apartment to talk to Johnson. She saw a gun in defendant's hand. She watched as Johnson left with defendant and defendant's wife.
Johnson's sister testified that after she came home on March 8, defendant called her and told her that he would kill Johnson unless she repaid defendant the $3,500 that Johnson's brother had taken from him. Johnson's sister heard Johnson screaming in the background. She received seven or eight calls from defendant that day, along with several calls from defendant's wife.
Timothy Belin admitted that he signed a statement at the police station on March 11, 1995. He testified that police tricked him into signing the statement. He did not tell police or the assistant State's Attorney any of the facts in the statement the assistant State's Attorney wrote out. He signed it without knowing what the attorney had written. The court permitted a prosecutor to read the signed statement into the record.
According to the statement, defendant brought Johnson to a room in a housing project and told another man to put Johnson in a closet with a pit bull. Belin heard Johnson yelling. Defendant directed Johnson to strip and he ordered Belin and others to tape over Johnson's mouth with duct tape, and to use more tape to bind Johnson's hands and feet. Defendant directed another man to burn Johnson. The man got a butter knife and heated it on the stove. He then pressed it against Johnson's bare skin. The man also took a hanger, heated it, and used it to burn Johnson. He burned Johnson numerous times. Another man poured bleach on Johnson's wounds.
In a separate proceeding Belin pled guilty to charges of aggravated kidnaping.
Johnson testified at the bond hearing that defendant and his wife came to Johnson's apartment on March 8, 1995. Johnson considered defendant a close friend of his family, and Johnson had known defendant's wife all her life. Johnson let them into the apartment. Defendant put a pistol to Johnson's stomach and demanded that Johnson accompany him to his van. Defendant asked where was Johnson's brother. Johnson said he did not know. Defendant and his wife took Johnson in their van to a housing project. Defendant told several "moes" to clear the front of the building. Johnson explained that leaders in the Black Peace Stones gang, including defendant, called other gang members "moes" so they would not need to use any names.
Johnson recognized Belin and another man amongst the moes who marched Johnson into the building then into an apartment and into a closet. Defendant ordered a man to put a pit bull in the closet with Johnson. The dog bit Johnson's wrist. The men including Belin stripped Johnson on defendant's orders. They taped Johnson's ankles together and bound his arms. Defendant ordered the men to put knives and a hanger on the stove. Belin burned Johnson with an iron. Johnson heard defendant call Johnson's sister and tell her that he would torture and kill Johnson unless she came up with the money. While defendant was on the phone he ordered one of the men to burn Johnson with a heated knife. Johnson hollered when they burned him.
After more burns and more calls defendant ordered Belin to pour salt on Johnson's...
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