People v. Fillyaw, 2018 IL App (2d) 150709 (December). Episode 575 (Duration 5:52)

Improper to not allow the defense to impeach an unavailable witness with an affidavit obtained by the defense.

Gist

This was a home invasion committed by 2 gunman. One victim was shot and killed while 2 others were shot but survived. Two witnesses were found unavailable by the time the second trial came around. The court allowed the State to read to the juries testimony from the first trial. One witness could not be found and the other one said she had no memory of the events.

The Affidavit

Also prior to the second trial, defendants filed a motion in limine to admit a notarized affidavit. They asserted that they could use the affidavit to impeach an unavailable witness if he were present to testify.

They also stated that the notary would be available to testify to the affidavit’s authenticity.

The affidavit states:

“1-23-14 I Lebraun Graham write this affidavit to say that I never saw who shot me On 7­ 17-07 truth be told the North Chicago police lead me to believe that William Fillyaw was the one who shot me[.] I don’t want a innocent man in jail for this incident when he’s not the person who shot me.”

The word “Sincerely” and Graham’s signature appear below the statement. The document has the notary seal of the notary and her signature on the notary line.

The court denied the request to admit the affidavit, because the affidavit mistakenly stated that the shooting took place on July 17, 2007, when the shooting in fact took place on June 29, 2007.

The Witness Trial Testimony

This witness testified in the first trial that he had seen the two shooters’ faces because they were not wearing masks. He identified defendant as the man who kicked in the door and another man as the person who entered the apartment.

Defendant carried a shotgun, while the other man had a handgun. The witness said the lighting was “okay” and that he did not have difficulty seeing the men. Fillyaw shot him in the left shoulder and the other man shot another victim.

This witness did not immediately identify defendants as the shooters. He was taken to the hospital, where he spent 3½ weeks and had four or five surgeries on his left shoulder. He had just come out of the first surgery and his family was in the hospital room when he spoke to detectives. 

He did not identify defendants as the shooters until almost 16 hours after the shooting, when he picked their photographs from separate arrays from his hospital bed while on morphine and in a great deal of pain, having recently had shoulder surgery. Both of the men he identified he knew.

The witness mistakenly identified a different man from a photo array as a third offender, who he later acknowledged was not involved in the shooting.

The Second Witness

The testimony from the first trial showed that she did not get a good look at the two shooters’ faces, because they wore masks that revealed only their eyes. She testified that one shooter wore a tannish jacket and fired at someone on the floor with a big black gun. She later identified the jacket that one of the men was wearing at the time of his arrest as the jacket worn by one of the shooters.

The juries found defendants guilty of first-degree murder and guilty of 2 counts of attempt murder. The trial court sentenced Fillyaw to 60 years’ imprisonment for the murder and sentenced the codefendant to 55 years’ imprisonment for the murder.

Both defendants were sentenced to 10 years for each of the two attempt first-degree murder convictions both to be served concurrently with their sentences for first-degree murder.

Illinois Rule of Evidence 806

Both defendants contend that the trial court erred in refusing their request, pursuant to Illinois Rule of Evidence 806 (eff. Jan. 1, 2011) (Rule 806), to impeach the witness’s prior testimony with an affidavit which recants his identification of defendants as the shooters.

Defendants also argue that the trial court’s refusal to admit the affidavit violated their constitutional rights to present a defense and to confront the witnesses against them.

Evidence Rule 806 provides:

“When a hearsay statement *** has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.”

Ill. R. Evid. 806 (eff. Jan. 1, 2011).

Prior to the adoption of the Illinois Rules of Evidence, it was recognized that, where a statement of an absent declarant is properly admitted into evidence under a hearsay exception, “the opposing party may impeach such statement with a prior inconsistent statement by the declarant.” People v. Smith, 127 Ill. App. 3d 622, 630 (1984) (citing Federal Rule of Evidence 806 (28 U.S.C.A.), which closely tracks the language of Rule 806).

More Illinois Rules of Evidence Rules and Cases can be found here.

State Admitted The Prior Testimony

The trial court found the witnesses to be unavailable and the court allowed the State to present his testimony from the first trial. See Ill. R. Evid. 804(a)(5) and (b)(1) (eff. Jan. 1, 2011).

Illinois Rule of Evidence 804(a)(5)

A witness is unavailable if the witness – 

“…is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.”

Ill. R. Evid. 804(a)(5) (eff. Jan. 1, 2011).

Illinois Rule of Evidence 804(b)(1)

The following is not excluded by the hearsay rule if the declarant is unavailable as a witness:

“Former Testimony. 

Testimony given as a witness (A) at another hearing of the same or a different proceeding, or in an evidence deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, or (B) in a discovery deposition as provided for in Supreme Court Rule 212(a)(5).”

Ill. R. Evid. 804(b)(1) (eff. Jan. 1, 2011).

Analysis

The State had the right to introduce the witness’s testimony from defendants’ first trial due to his unavailability at the second trial, but defendants had the corresponding right, under Rule 806, to attack his credibility by any evidence which would be admissible if he had testified as a witness.

Had the witness testified at the second trial, he certainly could have been impeached with a written statement recanting his earlier identification of defendants by stating that he did not see who shot him. Before the affidavit would be admitted into evidence, it would be defendants’ burden to authenticate it as having been signed by the witness. 

Here, defendant supplied a rational basis upon which the jury could conclude that the affidavit was authored by the witness. The notary testified that she was a notary public and that, while she did not recognize the affidavit or have memory of this particular transaction because she had witnessed “so many papers,” she did, in fact, state that she notarized the affidavit. She stated that it was her practice for the affiant to show her a State photo identification card or driver’s license and to watch the affiant as he or she signed the document; otherwise, she would not have notarized it.

We find it incomprehensible that the affidavit discusses an incident other than that in question in this case.

It seems obvious the date in the affidavit is not a reference to the date of the shooting but the day of the earlier identification. Regardless, the incorrect date would only concern the weight to be afforded the exhibit, not its admissibility. 

Defendants correctly note that they never sought admission of the affidavit as substantive evidence under the statutory provisions. Rather, defendants sought admission only to impeach the witness identification testimony under Rule 806.

This Was Not A Close Case

The State present any physical evidence tying defendants to the offenses; no latent fingerprints or guns were recovered.

Parker’s cell phone was found in the alley by the victim’s apartment, but Parker lived about two blocks away. A tan jacket was taken from Parker, but no gunshot residue was detected on either cuff of the jacket.

In Fillyaw I, we also called into question Rodger’s credibility. Clearly, Rodgers’ testimony was problematic at best. At times, she stated she could see defendants’ faces and at other times she could “not really” identify them. Rodgers also intimated that she was persuaded to circle defendants’ photographs because of police pressure. In short, Rodgers, as the trial court noted, had a “proclivity to change her mind and let’s just say testify whimsically.”

Graham’s identification testimony was of great importance during the trials. In order to accurately assess the credibility of Graham’s prior testimony, the jury was entitled to know that subsequent to that testimony, Graham allegedly had signed an affidavit disavowing his identification and attributing the misidentification to improper inducement by the police. The jury had a right to consider the affidavit in judging the value and believability of Graham’s testimony.

Holding

We agree that given the weak circumstantial evidence and the problematic eyewitness accounts, the affidavit’s exclusion was “anything but harmless.” If the witness testimony is used in either case on remand, the affidavit may be admitted as a prior inconsistent statement.

Reversed and remanded.