People v. Evans, 2016 IL App (3d) 140120 (July). Episode 223 (Duration 6:52)

Prosecutor gets a little aggressive with a codefendant who improperly took the fifth.

Background

In this murder trial, the defendant was accused of felony murder in the shooting of a gas station clerk. Defendant’s codefendant had already been convicted and was put on the stand even though counsel knew he would plead the fifth.

The prosecutor granted use immunity and the witness was admonished he had to answer.

Nonetheless, he continued to plead the fifth.

The prosecutor kept him up there and kept going at him. 20 times he said he was pleading the fifth.

Defendant filed a motion for a new trial, in which he argued, among other things, that the trial court erred by allowing the State to continue to examine the codefendant in the presence of the jury where the examination amounted to testimony by the prosecutor and assumed facts not in evidence.

Here, leading questions tracked his testimony in his own trial.

Issue

Defendant argued that he is entitled to a new trial because the manner in which the prosecutor questioned the codefendant deprived him of his constitutional right to confront witnesses against him.

(Even the issue as presented by the defense was technically inaccurate.)

Defendant claimed prejudice because of the inferences that could have been made from the refusal to answer added “critical weight” to the State’s case in a form not subject to cross-examination.

Namely, that the codefendant ran away from the gas station with Defendant, that Defendant was the shooter, and that they hid the gun at his sister’s house.

State’s Position

The prosecutor had argued that her questioning was proper for impeaching the response that the witness did not remember being with defendant on the day of the murder.

The continued questioning was not error because he had answered some questions, which created an inference he might be willing to answer additional questions.

Reviewing Court

The reviewing court is wrong in holding that had the prosecutor laid a proper foundation she would have been entitled to impeach the witness with his prior inconsistent statement from his own trial.

The court said the witnesses testimony that he did not remember was inconsistent per Rule 801(d)(1)(A)(1). This is just wrong.

The error, said the court, was that the prosecutor never attempted to lay a proper foundation regarding the prior statement made by, and she failed to offer any substantiating proof of the statement to complete the so-called impeachment.

The Gist of the Error

The gist of the error was that the prosecutor improperly disclosed the substance of the codefendant’s alleged prior statement to the jury through leading or suggestive questions, which presumed facts not in evidence.

This is actually correct (plus the resulting prejudice).

Then Right Back to Shaky Reasoning

This conclusion is shaky though:

“Consequently, without the admission of the prior statement, the prosecutor’s leading questions that placed [the witnesses] alleged prior inconsistent statement before the jury constituted improper impeachment under applicable evidentiary rules.”

I don’t see this as a confrontation clause issue.

The court made no attempt to justify this holding with case law. Arguably, since the witness was on the stand “answering questions” he was sufficiently confronted. The trail court again reiterated that the witness responded, “I plead the Fifth” to 20 questions.

As a result of the leading questions, the State’s theory of the case regarding the circumstances of the murder was placed before the jury.

Again, with no attempt to put into evidence the witness’s prior statement, the testimonial aspects of the examination of the witness regarding the circumstances of the crime came from the prosecutor’s questions and not from the witness.

Final Holding

The court’s final holding was that that regardless of the grant of immunity to and regardless of whether he actually had the right to assert the fifth amendment, without the admission of the prior statement, defendant’s right to confrontation was violated where, over defendant’s objection, in the presence of the jury, the witness refused to answer 20 of the prosecutor’s leading and suggestive questions about the alleged crime. Murder conviction was reversed because this was not harmless error. Here, the prosecutor improperly brought every detail of the codefendant’s prior testimony to the attention of the jury, and it could be argued that it had a prejudicial influence in the minds of the jury due to the indication that the defendant committed the crime for which he was being tried.

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