People v. Gardner, 2024 IL App (4th) 230443 (August). Episode 1061 (Duration 11:21)

How do we know this defendant’s exact wrong doing was the reason why the witness became unavailable? Short answer: deduction and inference.

Conviction & Sentence

Gardner appeals from his conviction and 20-year sentence for 

• possession of a converted vehicle (625 ILCS 5/4-103(a)(1) (West 2022)), 
• unlawful possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2022)),
• unlawful possession of ammunition by a felon (id.), and 
• harassment through electronic communications (id. § 26.5-3(a)(5)).

Issue

Defendant argues that the trial court erred by admitting statements by White under the forfeiture by wrongdoing exception to the hearsay rule.

Facts

Defendant’s girlfriend called police after an argument with defendant. 

He had a gun and she hid the magazine of the gun, this really angered defendant he threatened to kill her. 

When police got there she told police that defendant stole license plates on his truck and put them on the truck. She said his auntie told her that he took those plates off somebody’s car and put’em on his truck. 

She also told police that she thought the truck was stolen. She said defendant showed up with it about a month ago, said he paid somebody $4,000.

The Wrong Doing

While incarcerated, he made several telephone calls to White, asking her to recant and say that the gun belonged to her and not him. 

White repeatedly refused, saying that she did not want to be charged with unlawfully possessing the gun or with obstruction of justice, which her lawyer had told her were possible consequences of recanting. 

He Moves Back In With Her

On defendant’s motion, his bond was reduced to $25,000 with the conditions that he live with his mother in Decatur, continue to have no contact with White, and stay away from her apartment.

Defendant posted bond and filed a motion to remove the no-contact condition, attaching an affidavit from White saying that, 

• she had not requested the no-contact condition, 
• wanted it to be lifted, 
• and was not in fear of harm for herself if defendant had contact with her or went to her address. 

The trial court held a hearing, at which White testified that she was not afraid for her safety or her children’s safety. The court removed the no-contact condition on April 6, 2022, and defendant began living with White at her apartment, rather than with his mother in Decatur.

Girlfriend Disappeared For Trial

Before trial, the McLean County Sheriff’s Office made 27 unsuccessful attempts to serve White with a subpoena and obtain her testimony at trial. 

The State moved in limine to admit some of White’s February 14, 2022, statements to Nyman under the forfeiture by wrongdoing exception, asserting that its inability to serve White rendered her unavailable as a witness and that defendant’s pressure on White constituted “wrongdoing that was intended to, and did, procure the unavailability of [White] as a witness.” Ill. R. Evid. 804(a)(5), (b)(5) (eff. Jan. 1, 2011). 

After a hearing, the trial court found that the State had proven forfeiture by wrongdoing and granted the motion. Because the State did not move to admit the particular statements quoted above, the court neither ruled on their admissibility nor played that portion of the video for the jury. 

Forfeiture by Wrongdoing | Rule 804(b)(5)

The rule says, 

Under this exception, the State was required to prove by a preponderance of the evidence that defendant “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of [White] as a witness.” Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011). 

Definitely Unavailable

We note there is no dispute that White was unavailable in that the State could not secure her testimony, despite its extensive efforts to serve her with a subpoena. See Ill. R. Evid. 804(a)(5) (eff. Jan. 1, 2011) (providing for a finding of unavailability on this basis); People v. Chatman, 2024 IL 129133, ¶ 44 (requiring the State to “demonstrate *** that reasonable, good-faith efforts were made to procure the witness’s attendance”).

Was There Really Wrongdoing?

Defendant argues that the State failed to prove that he engaged in wrongdoing because there was no evidence that White was afraid of defendant, so she cannot have been intimidated into absenting herself from trial.

However, there is no requirement that the defendant secure the witness’s absence through threats or intimidation; the State needs only to “show that the defendant engaged in witness tampering or some type of conduct designed to *** thwart the judicial process.” In re Rolandis G., 232 Ill. 2d 13, 40 (2008) (citing Giles v. California, 554 U.S. 353, 359 (2008)); see United States v. Jonassen, 759 F.3d 653, 662 (7th Cir. 2014) (finding that pressuring a witness to recant constituted wrongdoing). 

See also People v. Golden, 2021 IL App (2d) 200207 (September). Episode 907 (Duration 9:34) (Forfeiture By Wrongdoing Does Not Require Any Overt Threats or Coercion)

1. Here, the State showed that defendant repeatedly asked White to testify to something other than what she believed was the truth, even though he was forbidden from contacting her as a condition of his bond at that time. 

2. Violating a bond condition to encourage a witness to perjure herself is exactly the type of conduct that the forfeiture by wrongdoing exception is intended to remedy. Rolandis G., 232 Ill. 2d at 40.

3. Accordingly, the trial court’s conclusion that defendant engaged in wrongdoing is not against the manifest weight of the evidence.

1) Yeah, But Did This Wrong Doing Intend To Cause Her Unavailability?

Defendant further argues that the State failed to prove that his actions were intended to cause White’s unavailability. 

Defendant’s troubling argument is that he cannot be faulted for the witness’s absence because, if she had done as he asked, she would have testified and perjured herself. 

Although there is authority to suggest that even pressuring a witness to testify falsely can satisfy the intent requirement (see People v. Nelson, 156 A.D.3d 1112, 1117 (N.Y. App. Div. 2017)), we need not reach the question here because the State was required only to show that defendant’s wrongdoing “was motivated ‘at least in part’ by an intent to prevent her from testifying.” Peterson, 2017 IL 120331, ¶ 50 (quoting People v. Stechly, 225 Ill. 2d 246, 272 (2007)); accord United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996) (“[T]he intent to deprive the prosecution of testimony need not be the [defendant’s] sole motivation.” (Emphasis in original.)).

Defendant has not made such a showing.

She Had 3 Options

As defendant points out in his brief, White was not afraid of him; in fact, she explicitly told him that she did not want him to serve a 10-year prison sentence for possessing the gun.

At one point during his pressure campaign, she said to him, “There’s got to be another way.”

He responded by saying to her, “There’s no other way, man, it[’]s either you or me. That’[s] a real hard decision. I know[,] man. It’s you or me, either I’m going or you lose all your benefits.” 

But defendant was wrong; White had three options: (1) take the stand and testify consistent with her earlier statement, bolstering the State’s case and potentially exposing defendant to a long term of incarceration for possessing the gun, (2) take the stand and recant her earlier statement, potentially opening herself up to criminal liability for obstruction of justice and for possession of the gun, or (3) avoid taking the stand altogether. 

“ ‘The defendant is presumed to intend the natural and probable consequences of his acts ***.’ ”

• People v. Dorsey, 2016 IL App (4th) 140734, ¶ 34 (quoting People v. Terrell, 132 Ill. 2d 178, 204 (1989)); cf. 
• People v. Davis, 2018 IL App (1st) 152413, ¶ 42 (imputing coconspirators’ intent to silence a witness to the defendants under a theory of conspiracy liability). 

Accordingly, the trial court’s conclusion that defendant was motivated at least in part by an intent to cause White’s unavailability is not against the manifest weight of the evidence.

2) But How Do We Know She Really Disappeared Because of What Defendant Said To Her?

Defendant finally argues that the State failed to prove that his conduct in fact caused White’s unavailability.

Defendant also points to a lack of evidence that he explicitly instructed White to absent herself by evading service. 

However, there was no requirement for the State to prove that he caused her to take any particular action to become unavailable, merely that he “procure[d] the unavailability of [White] as a witness.” Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011). 

Of course, an absent witness cannot testify to explain her absence, so a causal connection “may be established by inference from circumstantial evidence.” 

• People v. Krisik, 2018 IL App (1st) 161265, ¶ 55; see 
• People v. Melchor, 362 Ill. App. 3d 335, 355 (2005) (finding no causal connection when “[the witness’s] death from a drug overdose [wa]s not a logical outgrowth, foreseeable result, or legitimate consequence of [the] defendant’s flight [from prosecution]”), vacated on other grounds, 226 Ill. 2d 24 (2007).

According to defendant, nocausal connection exists between his conduct and White’s failure to testify because “the basis for her decision was her contact with a lawyer and subsequent belief that her possession of the firearm would subject her to felony charges.” 

White’s conversations with defendant do suggest that she avoided recanting in part because the inescapable conclusion from her recantation would have been that the gun in her apartment was hers, even though she implied she could not lawfully possess a gun. 

However, she could have avoided this outcome by testifying to what she clearly believed was the truth: the gun was defendant’s.

Furthermore, White’s belief about possible felony charges was not subsequent to defendant’s pressure campaign; after she mentioned it to him on a jail call, he said, 

“still with that felony you can get it expunged in seven years, you would just not be able to get some of things that you already not, you don’t f*** want, you never want, you never going to f*** go get a gun anyway.” 

Minutes later, she insisted that there had to be “another way” out of the situation. In other words, her decision to evade service was based not just on the possibility of felony charges but also on his expressed desire for her to incur those charges instead of him. 

The trial court could fairly infer that defendant caused White to avoid testifying by selfishly escalating, rather than reducing, the pressure on her after she mentioned her lawyer’s advice about possible felony charges.

Indeed, the State will often be unaware of what precise steps were taken to procure a witness’s absence; if the State knew, it could presumably trace those steps to obtain the witness’s presence. Accordingly, the trial – 12 – court’s conclusion that defendant caused White’s unavailability is not against the manifest weight of the evidence.

Holding

For the reasons stated, we affirm the trial court’s judgment. ¶ 71 Affirmed.

See Also

• People v. Bliefnick, 2024 IL App (4th) 230707 (November) (statements admitted via FBWD must still be otherwise admissible)
• People v. Peterson, 2017 IL 120331 (September). Episode 396 (Duration 17:32) (Drew Peterson Loses His Forfeiture By Wrongdoing Claim)
• People v. Golden, 2021 IL App (2d) 200207 (September). Episode 907 (Duration 9:34) (Forfeiture By Wrongdoing Does Not Require Any Overt Threats or Coercion)
• People v. Chatman, 2024 IL 129133 (January). Episode 1025 (Duration 8:54) (Forfeiture By Wrong Doing Requires The State Show Unavailability Doesn’t Mean Dropping Everything)