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FIRST DIVISION
November 14, 2005
(Nunc pro tunc June 28, 2005)

No. 1-03-3036

PRESIDING JUSTICE BURKE delivered the opinion of the court:

Following a jury trial, defendant Efren Melchor was found guilty of firstdegree murder and sentenced to 40 years' imprisonment. On appeal, defendantcontends that: (1) the admission of a deceased eyewitness' testimony under theformer testimony exception to the hearsay rule in section 115-10.4 of the Codeof Criminal Procedure (Code) (725 ILCS 5/115-10.4 (West 2002)) violated hisconfrontation rights pursuant to Crawford v. Washington, 541 U.S. 36, 158 L. Ed.2d 177, 124 S. Ct. 1354 (2004); (2) the admission of the deceased eyewitness'testimony was erroneous because it lacked sufficient guarantees oftrustworthiness; (3) the trial court erred in admitting testimony from a policeofficer confirming the deceased witness' identification of defendant in a lineupin violation of section 115-12 of the Code (725 ILCS 5/115-12 (West 2002)) andin violation of Crawford; (4) the trial court denied defendant his right topresent a defense by excluding testimony from his brother regarding threats madeagainst his brother and himself; (5) the trial court erred in admitting gangevidence testimony; (6) the prosecutor engaged in misconduct in closing argumentby suggesting defendant fabricated a defense and in misstating evidence regardingthe lineup; (7) the trial court's 40-year sentence was excessive; and (8) thetrial court failed to properly admonish defendant pursuant to Supreme Court Rule605(a). For the reasons set forth below, we reverse defendant's conviction andvacate his sentence and remand.

On April 30, 1990, Steven Botello was shot to death at 2624 West Fullertonin Chicago. Defendant and codefendant, Ancermo Paredes, were arrested on May 6and were identified in a lineup as being involved in the shooting. Thereafter,both were indicted on two counts of murder. After being released on bond,defendant failed to appear in court and, on October 2, his bond was forfeited anda warrant for his arrest was issued. Defendant remained a fugitive for the next10 years. On May 15, 1991, codefendant's bench trial began. At this trial,Luis Ortiz, then 16 years old, the sole eyewitness to the shooting testified,implicating both codefendant and defendant. On May 20, codefendant was found notguilty. On September 11, 1998, Ortiz died as a result of a drug overdose. Inaddition, at some point, codefendant was deported to Mexico.

On October 15, 2000, defendant was again arrested. Prior to defendant'strial, the State indicated its intent to use Ortiz and codefendant's testimonyfrom codefendant's trial because both were unavailable. Defendant filed a motionto preclude the State from using their testimony, arguing that its use wouldviolate his confrontation rights and that the testimony, particularly Ortiz's,did not bear sufficient guarantees of trustworthiness. After a hearing, at whichthe State confirmed Ortiz was the sole eyewitness to the shooting, the trialcourt concluded that his testimony was "more probative" on the question ofwhether or not defendant was present at the scene of the shooting and whether hewas the shooter. The court then noted that while Ortiz's testimony was givenunder oath at a hearing, there had been no cross-examination by defendant oranyone on his behalf, but only on behalf of codefendant. Despite this, the courtconcluded that Ortiz's testimony was trustworthy and there were "equivalentguarantees of trustworthiness" to admit it. However, the court denied theState's request to use codefendant's prior testimony.

Defendant's jury trial began on March 18, 2003. Julio Diaz, who was 30years old at the time of defendant's trial, testified that on April 29, 1990,from approximately 9 p.m. to midnight, he was playing basketball in Haas Park atFullerton and Washtenaw with Ortiz, Botello, and "Tootie." According to Diaz,the group shared a quart of beer. At approximately 11:30 p.m., the group leftthe park and was walking down Fullerton to get more beer. At this time, they sawfour Hispanics coming in their direction on the same side of the street, none ofwhom Diaz recognized. Tootie said he was going to "mess with" them, to whichDiaz responded there was no need for that. When the Hispanics were near Diaz'sgroup, Tootie made a motion like he was going to hit them in the groin orstomach. According to Diaz, the Mexicans then crossed the street and startedswearing at Diaz's group in Spanish. Botello said "let's fight," so Diaz'sgroup, with the exception of Tootie, who ran away, walked across the street. Diaz further stated that the Mexicans were throwing bottles and bricks at hisgroup, his group ran toward them, and a "free for all" fistfight began. Afterapproximately 10 minutes, the fight broke up because Botello yelled that the lawwas coming. Just prior to this, Jamie Figueroa (also deceased at the time ofdefendant's trial) and Mario Lopez had joined the fight.

Diaz also testified that he and Figueroa hid in a viaduct for a few minutesafter the fight broke up and then went to a pay phone. At this time, Ortiz andBotello were also there. The group then walked to Fullerton and Californiabecause Botello wanted to see his daughter. At this intersection, there was aShell and Amoco gas station on either corner. Diaz walked toward the Shellstation to say hello to someone he knew. Approximately 10 minutes later, Botelloreturned. According to Diaz, as Botello was walking toward the station, Diaz sawa two-door gray Toyota hatchback attempt to hit Botello. Diaz also saw fourindividuals in the car and recognized as least one of them as one of the guys hisgroup had been fighting with earlier.⁽¹⁾ His group then started walking eastboundon Fullerton toward "Bunkie's Tavern." Diaz saw "Flash," whom he spoke with fora few minutes, and then he went to the Goethe School playground to tell Flash'sgirlfriend that Flash was on Fullerton. While talking to this girl, Diaz heardtwo sounds like firecrackers. According to Diaz, he got on a bike and rodetoward Fullerton. He saw a squad car and Botello on the ground. It was hisbelief that the cop had hit Botello. Diaz then rode to the Amoco station, gottwo hotdogs, and ate one of them. He got back on the bike and rode eastbound onFullerton. Botello was still on the street and, at this time, Diaz found outthat Botello had been shot.

Diaz further testified that the guy he recognized in the car whom he hadbeen fighting with was codefendant. Defense counsel then requested a sidebar,at which time he asked to inquire of Diaz about his gang affiliation. The courtindicated that counsel could ask Diaz only if he was a gang member and, if so,which one. The State, upon resuming questioning of Diaz, presumably inanticipation of defense counsel's questions, asked him whether he was in a gang,to which he responded in the affirmative, stating he was a member of the LatinLovers. Diaz further stated that Ortiz, Botello, Figueroa, Lopez, and Tootiewere also in the same gang. Diaz also stated that he knew the four Mexicans werenot in a gang because "you could tell," and that the fight did not start as aresult of gang rivalry, but because Botello opened his mouth.

On cross-examination, Diaz testified that he was fighting with defendant. He then said he was fighting with the individual shown in a photograph(codefendant), who was the individual he identified in a lineup. Diaz then againstated he had fought with defendant and, upon viewing him in court, stateddefendant looked different now.⁽²⁾ Diaz then admitted that he never observedBotello's shooter.

Christopher Donnelly, the assistant State's Attorney who was responsiblefor trying codefendant in 1991, read Ortiz's testimony from codefendant's trial. Ortiz testified that he had been friends with Botello and Diaz for 10 years. OnApril 29, 1990, Ortiz was with Botello, Diaz, and Tootie at Harris Park, locatedat Fullerton and Fairfield, playing basketball.⁽³⁾ Ortiz's testimony regarding thefight and attempted hit-and-run was basically consistent with Diaz's testimony. Ortiz, too, stated there were four individuals in the car and that he saw thefaces of two individuals in the back seat. Ortiz identified codefendant as oneof the individuals he saw and as one of the individuals he had seen earlier thatnight in the fight. He further stated that he saw the shooter (however, he didnot identify who this was at codefendant's trial), first stating the shooter wasin the driver's side rear seat and then stating he was in the front passengerseat.

Ortiz and his group then walked eastbound down Fullerton. Ortiz first saidthe group was going to a park and then said, "No," they were "just gonna walkaround." According to Ortiz, when the group was in front of "Bonkey's Tavern,"he saw Flash, Wilfredo Hernandez, and Shorty, whom he spoke with. Ortiz statedthat Diaz left on a bike to go to Gaither Park. Botello also rode off on a bikehe got from Shorty because he had left his wallet at the park, heading westboundon Fullerton toward California. Ortiz observed Botello looking for his wallet,when a little gray car pulled in the parking lot by the park. Ortiz first statedhe did not recognize the car and then stated he did--it was the same car thattried to run Botello over. According to Ortiz, the passenger side door opened,a guy got out, reached over the roof of the car, and shot Botello. The guy thengot back in the car and it drove off. Ortiz further testified that on May 6,1990, he went to Area 5 and viewed a lineup out of which he identified twoindividuals. Ortiz stated that he identified the first individual, codefendant,as one of the individuals he had been fighting with and the second individual,defendant, as the shooter, but not someone who had been involved in the fight. Ortiz further stated that he had first seen these two individuals in the parkinglot at the Shell station in the gray Toyota. Specifically, he stated thatcodefendant was the back seat passenger and defendant was the front seatpassenger.

On cross-examination, Ortiz stated that, with respect to the shooting, hewas approximately 100 feet from the car, then stated it was 25 feet, and then 5feet. According to Ortiz, codefendant was behind the passenger at the time ofthe shooting and he denied telling the police codefendant was behind the driver. Ortiz further stated that he did not observe the driver, but stated the driverwas not one of the individuals involved in the fight.

Thereafter, the State presented the testimony of the two detectivesinvolved in defendant's initial arrest.

[Nonpublishable material under Supreme Court Rule 23 removed here].

The State then rested. Defendant moved for a judgment of acquittal, whichthe trial court denied. Defendant then offered testimony on his own behalf,including his own testimony.

[Nonpublishable material under Supreme Court Rule 23 removed here].

After defendant offered his evidence, the State called the two detectivesinvolved in defendant's initial arrest in rebuttal.

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After the State and defendant gave their closing arguments, the case wassubmitted to the jury. During the course of its deliberations, the jury sentseveral notes to the court. One inquired as to whether Ortiz testified througha translator from Spanish to English. It was advised that he did not. The juryalso requested to review the transcripts of Detective Guevara, Ortiz, and Diaz'stestimony. With respect to Guevara's testimony, the jury indicated that itwanted to verify whether he had asked defendant if he was a gang member and thatdefendant's response was yes, he was a member of the Pachuros gang. The jury wasprovided with the transcripts of Ortiz and Diaz's testimony, but since Guevara'swas not available, it was simply advised that "[t]hat was the testimony ofDetective Guevara."

On March 21, the jury found defendant guilty of murder. On April 17,defendant filed a motion for a new trial, arguing, inter alia, that the trialcourt erred in admitting Ortiz's testimony, erred in refusing to allow defendantto impeach Ortiz with a robbery charge that was pending at the time ofcodefendant's trial, and erred in refusing to allow defendant to impeach Ortizwith a 1994 conviction for armed robbery. On April 30, during a hearing ondefendant's motion, he orally moved to amend the motion to include as an errorthe trial court's refusal to allow his brother to testify. The trial courtdenied defendant's motion for a new trial. In reaching its decision, the trialcourt noted that if the only evidence of defendant's guilt had been Ortiz'stestimony, the court would have directed a verdict in defendant's favor. However, according to the court, defendant provided it with additional evidenceof his guilt: his flight and an unsuccessful alibi defense.

The court then held a sentencing hearing and, thereafter, sentenceddefendant to 40 years' imprisonment. On May 14, defendant pled guilty to bailjumping. He was sentenced to 13 years' imprisonment for that offense, to runconsecutive to his sentence for murder. This appeal followed.

Defendant first contends that section 115-10.4 of the Code has beenrendered unconstitutional pursuant to Crawford since it does not require that adefendant have had a prior opportunity to cross-examine a witness beforeadmitting former testimony. Defendant argues that Crawford was violated in theinstant case by the admission of Ortiz's testimony from codefendant's trial,which denied him his right to confront witnesses. Defendant also contends thatadmission of Ortiz's testimony was not harmless error because it contributed tohis conviction since Ortiz was the sole eyewitness to identify defendant as theshooter and no other evidence connected him to the crime. The State contendsthat defendant forfeited his sixth amendment confrontation claim by his ownwrongdoing in intentionally absenting himself from the court and engaging in anelaborate scheme to avoid the law for 10 years. Section 115-10.4 of theCode, entitled "Admissibility of prior statement when witness is deceased,"provides:

"(a) A statement not specifically covered by anyother hearsay exception but having equivalentcircumstantial guarantees of trustworthiness is notexcluded by the hearsay rule if the declarant isdeceased and if the court determines that:

(1) the statement is offered asevidence of a material fact; and

(2) the statement is more probativeon the point for which it is offered thanany other evidence which the proponent canprocure through reasonable efforts; and

(3) the general purposes of thisSection and the interests of justice willbest be served by admission of thestatement into evidence.

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(c) Unavailability as a witness under this Sectionis limited to the situation in which the declarant isdeceased.

(d) Any prior statement that is sought to beadmitted under this Section must have been made by thedeclarant under oath at a trial, hearing, or otherproceeding." 725 ILCS 5/115-10.4 (West 2002).⁽⁴⁾

In Crawford, the Supreme Court "overruled the longstanding reliabilityframework for the admissibility of out-of-court statements contained in Ohio v.Roberts, 448 U.S. 56, 65 L. Ed. 2d. 597, 100 S. Ct. 2531 (1980)." People v.Thompson, 349 Ill. App. 3d 587, 593, 812 N.E.2d 516 (2004). The Crawford Courtheld that in order to satisfy the confrontation clause of the sixth amendment,testimonial statements of a witness who is not present at a defendant's trial areadmissible only if (1) the declarant is unavailable and (2) the defendant had anopportunity to cross-examine the witness at the time of the statement. Crawford,541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Crawford rendered thephrases "indicia of reliability" and "particularized guarantees oftrustworthiness" irrelevant to confrontational clause rights. Crawford, 541 U.S.at 60, 158 L. Ed. 2d at 197, 124 S. Ct. at 1369. However, the Crawford Courtspecifically noted that it continued to adhere to the rule that "forfeiture bywrongdoing" can extinguish a defendant's confrontation rights. Crawford, 541U.S. at 62, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370. Crawford is applicable tocases pending on direct review at the time of the decision or thereafter. Thompson, 349 Ill. App. 3d at 594.

In the instant case, the admission of Ortiz's testimony from codefendant'strial violated Crawford and, thus, defendant's confrontation rights. Specifically, there can be no dispute, and the State does not argue to thecontrary, that defendant did not have the opportunity to cross-examine Ortiz. Because of this, Ortiz's testimony was inadmissible at defendant's trial underthe dictates of Crawford. However, Ortiz's testimony would have been properlyadmitted if defendant forfeited his confrontation challenge by his wrongdoing orthe admission was harmless error.

The crucial question here is whether defendant forfeited, by his ownmisconduct in jumping bail, his confrontational rights with respect to Ortiz,which would deprive him of his right to challenge the admission of Ortiz'stestimony. The determination of this question depends upon adoption andinterpretation of the forfeiture by wrongdoing rule.⁽⁵⁾ The forfeiture bywrongdoing doctrine was first enunciated by the United State Supreme Court inReynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878). In Reynolds, whenpolice attempted to serve the defendant's second wife with a subpoena to testifyagainst him at his bigamy trial, the defendant refused to reveal her presence. Reynolds, 98 U.S. at 159, 25 L. Ed. at 248. The district court concluded thatthe defendant procured her absence and allowed admission of her testimony froma prior bigamy trial as evidence against the defendant. Reynolds, 98 U.S. at158-60, 25 L. Ed. at 247-48. On appeal, the defendant argued that he was deniedhis right of confrontation by the admission of his second wife's testimony. TheCourt disagreed. In reaching its conclusion, the Supreme Court relied onlanguage from a 1666 British case, Lord Morley's Case (6 State Trials 770): thewitness was "detained by the means or procurement of the prisoner." Reynolds,98 U.S. at 158, 25 L. Ed. at 247. The Court further relied on language fromanother case where evidence was admitted in the witness' absence because "theprisoner had resorted to contrivance to keep a witness out of the way." Reynolds, 98 U.S. at 158, 25 L. Ed. at 247. The Court then noted that othercourts had implemented the principle of forfeiture and all had found or impliedthat "the witness must have been wrongfully kept away." Reynolds, 98 U.S. at159, 25 L. Ed. at 248. The foundation for the rule, according to the Court, wasthat "no one shall be permitted to take advantage of his own wrong" and it wasbased upon "common honesty." Reynolds, 98 U.S. at 159, 25 L. Ed. at 248. Inlight of these principles, the Supreme Court found:

"The Constitution gives the accused the right toa trial at which he should be confronted with thewitnesses against him; but if a witness is absent by hisown wrongful procurement, he cannot complain ifcompetent evidence is admitted to supply the place ofthat which he has kept away. The Constitution does notguarantee an accused person against the legitimateconsequences of his own wrongful acts. It grants himthe privilege of being confronted with the witnessesagainst him; but if he voluntarily keeps the witnessesaway, he cannot insist on his privilege. If, therefore,when absent by his procurement, their evidence issupplied in some lawful way, he is in no condition toassert that his constitutional rights have beenviolated." (Emphasis added.) Reynolds, 98 U.S. at 158,25 L. Ed. at 247.

The Court concluded that enough evidence had been proven to place the burden onthe defendant to show "that he had not been instrumental in concealing or keepingthe witness away" and that he had a "full opportunity [at his trial] to accountfor the absence of the witness, if he would, or to deny under oath that he hadkept her away." Reynolds, 98 U.S. at 160, 25 L. Ed. at 248. However, thedefendant failed to do so. Accordingly, the Court concluded that the defendant,by procuring the witness' absence, could not complain that his constitutionalrights had been violated and held that the admission of the testimony was proper. Reynolds, 98 U.S. at 160, 25 L. Ed. at 248.

By the 1970s, federal courts of appeal had begun to adopt the doctrine,including the 2nd, 5th, 6th, 8th, 10th, and 11th Circuits. See Commonwealth v.Edwards, 444 Mass. 526, 533, 830 N.E.2d 158, 166 (2005) (citing cases). Becausethe forfeiture by wrongdoing rule had become so well-accepted, in 1997, it wascodified in Federal Rule of Evidence 804(b)(6) (FRE 804(b)(6)).⁽⁶⁾ The rule waspromulgated to "attempt to respond to the problem of witness intimidation wherebythe criminal defendant [through one means or another] *** procures theunavailability of the witness at trial and thereby benefits from the wrongdoingby depriving the trier of fact of relevant testimony." M. Graham, 3 Handbook ofFederal Evidence