People v. Gray

NO. 4-06-0488 Filed 1/16/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
AMMON GRAY, ) No. 05CF324
Defendant-Appellant. )
) Honorable
) Craig H. DeArmond,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

In February 2006, a jury found defendant, Ammon Gray,

guilty of first degree murder (720 ILCS 5/9-1(a)(3) (West 2004)),

armed robbery (720 ILCS 5/18-2(a)(1) (West 2004)), and home

invasion (720 ILCS 5/12-11(a)(2) (West 2004)). The State later

tried a codefendant, Marlon Williams, in a separate trial. As to

the charge of first degree murder in particular, defendant was

convicted on an accountability theory. In June 2006, the trial

court sentenced defendant to concurrent terms of 60, 30, and 30

years, respectively. Defendant appeals, alleging that the trial

court committed reversible error in refusing to admit potentially

exculpatory evidence that defendant contends supported a by-

stander defense. We reverse and remand for a new trial.

I. BACKGROUND

Defendant Gray and codefendant Marlon Williams worked

with murder victim Kenneth Blondeel at an industrial plant.
Other coworkers testified that Blondeel had been telling people

at work that he had just inherited "a lot" of money from his

mother's estate. Scottie Polk, a worker at the plant, testified

that he overheard Williams and defendant speculating as to how

much money Blondeel had inherited. Polk overheard Williams and

defendant talking about "kicking in the door" to Blondeel's house

and robbing him. There is some dispute as to whether Blondeel

was also involved in the discussion.

Rachel Ryan, Blondeel's girlfriend, who was pregnant

with Blondeel's child at the time of the incident, testified that

Blondeel had just inherited approximately $17,000. On the night

in question, Ryan and Blondeel were lying in bed when they heard

a knock on the door at approximately 11:45 p.m. Ryan was sure

that it was their friend Rudy because Rudy was the only person

who would come calling so late at night. The caller was in fact

Rudy, and Ryan heard Blondeel and Rudy talking for about 15

minutes. When Rudy left, Blondeel went back to bed. Ryan and

Blondeel fell back asleep. Ryan then was awakened by another

knock at the door. Ryan woke Blondeel up, told Blondeel that

Rudy was back, and told Blondeel to answer the door. Ryan stayed

in the bedroom.

It was not Rudy. Ryan heard two male voices and,

through the crack of the bedroom door, saw Blondeel let two men

into the kitchen. In court, Ryan identified the two men as

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Williams and defendant. Williams and defendant were talking

loudly, telling Blondeel that they wanted to "hang out." Wil-

liams and defendant appeared drunk. Williams and defendant

wanted to know why Blondeel had not been at work that day.

Blondeel told them he quit his job because he "got a stack of

money." Williams asked Blondeel where he kept the money. When

Ryan heard this, she "got a bad feeling," took Blondeel's wallet

out of the nightstand, and hid it behind the bed. Williams then

asked Blondeel for the money several times, but Blondeel told

Williams it was in the bank. Ryan could not call for help

because Blondeel did not have a landline and Ryan did not know

where Blondeel had left his cellular telephone.

At this point, Blondeel ran into the bedroom. Williams

and defendant followed Blondeel. Williams told Ryan, "Get back

in bed before I beat your ass." Ryan did so because she was

scared. Williams then repeatedly hit Blondeel in the face.

Defendant hit Blondeel once or twice. Williams dragged Blondeel

out into the living room. Ryan heard them arguing. Williams

then told defendant to bring Ryan out into the living room.

Defendant made Ryan sit on the ottoman. Williams backed Blondeel

up against the front door and continued to demand the money.

Blondeel kept insisting that he did not have the money and

finally offered Williams his automated teller machine (ATM) card

so that Williams could withdraw the money. Williams then took

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out a knife and stabbed Blondeel in the face. Defendant then

came up on the other side of Blondeel and said, "Don't be stupid.

Just give us the money." Williams and defendant both began

hitting defendant. Blondeel was yelling, "Quit it. I thought we

were friends." Blondeel then escaped into the kitchen.

In trying to placate Williams and defendant, Blondeel

told them that he had $1,000 in his wallet. Blondeel told Ryan

to go get his wallet, which actually contained only $150 and the

ATM card. Ryan saw Blondeel's stun gun behind the bed when she

went to get the wallet but the gun was cased and Ryan did not

know how to use it. Ryan came out of the bedroom and gave the

wallet to defendant. Williams became very angry when he saw that

only $150 was in the wallet. Williams began to stab Blondeel in

the chest, arms, and head.

Defendant took Ryan into the living room. Defendant

kept his hands on Ryan. When Ryan looked into the kitchen to see

what was happening, defendant forced her head down. Blondeel

continued to struggle to get away from Williams. Blondeel made

it back into the living room, and Williams slammed Blondeel's

head against the entertainment center. At one point, Blondeel

made it all the way over to Ryan and told her that he loved her

and that he thought Williams and defendant were going to kill

him. Somehow Blondeel ended up back in the kitchen. Ryan heard

Blondeel scream Williams' name. Williams then said, "Now your

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girlfriend knows my name so we will have to kill her." Blondeel

said, "Don't hurt her. She's pregnant." Blondeel later

screamed, "I just want to have a family." Williams told Blondeel

to "shut up."

Defendant told Ryan that he would protect her if she

did whatever Williams wanted. Defendant then went outside and

started talking on his cellular phone. Ryan followed defendant

outside. Williams saw Ryan start to go outside and told Ryan,

"If you go out there, [defendant] will beat your ass." Defendant

saw Ryan and brought her back inside.

Williams continued to attack Blondeel. Williams

ultimately slit Blondeel's throat. Williams then asked defendant

for a cigarette and began to smoke. Williams said they could not

leave until Blondeel died. After Williams finished his

cigarette, he stabbed Blondeel again and kicked Blondeel in the

stomach while Blondeel was dying. Ryan testified that the entire

chain of events, from the time Williams and defendant knocked on

the door until the time Blondeel died, seemed to last several

hours.

After Blondeel died, Williams made Ryan go with

Williams and defendant to the ATM machine. Ryan testified that

it took between 30 to 45 minutes to locate Williams' car because

Williams had parked the car far from Blondeel's apartment.

Williams drove to the ATM machine and then waited in the car

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while defendant and Ryan withdrew $200. Ryan tried to withdraw

more money but was denied. Ryan told defendant that she was

denied because the inheritance money was in the bank and not

accessible through an ATM machine. Williams drove to another ATM

machine at a gas station with a convenience store. The ATM at

the gas station also denied Ryan access to additional money.

While at the gas station, Ryan made eye contact with one of two

convenience-store clerks and pointed to blood that had gotten on

her shirt during the killing. Ryan mouthed to the clerk to call

the police. Both clerks later testified that Ryan had tried to

get their attention. The clerks wrote down the license number of

Williams' car but did not call the police. Williams then drove

away from the gas station and parked the car under a viaduct.

Williams told Ryan she was lucky to be alive. Williams showed

Ryan the knife he had used to kill Blondeel and told Ryan that if

she reported him, he would kill her. Williams let Ryan out of

the car and drove away. Ryan subsequently ran to an ex-

boyfriend's house and alerted police. It was then 5:16 a.m., on

May 22, 2005.

On cross-examination, Ryan testified that Blondeel had

used cocaine on the day of the incident. Ryan also testified

that, in her initial report to police, which took place at 7 the

morning of the incident, she did not state that defendant hit

Blondeel. Instead, Ryan initially told police that defendant

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"didn't do anything," defendant never had a weapon, and defendant

appeared as though he wanted to leave. Ryan told police that

Williams had committed all the violent actions against Blondeel

and that defendant had been "really nice to [Ryan]," telling Ryan

that he would protect her.

On redirect, Ryan testified that she had been in a

state of shock when she gave her initial statement to police and,

at that point in time, felt that defendant was the reason she had

survived the incident. Ryan testified that it was not until

nearly a month later that her memory and concentration improved

to the point where she told police an account more in keeping

with what she testified to at trial, i.e., that defendant also

hit Blondeel, defendant had an opportunity to leave when he went

outside to talk on his cellular telephone, and defendant stopped

Ryan from leaving. Ryan had hired an attorney at this point

because she worried that the police suspected her of being an

accomplice.

Just before opening statements were made, defense

counsel stated he wanted to discuss Marlon Williams' videotaped

statement to the police. The State objected the statement was

hearsay. Defense counsel argued that the statement, which

contained evidence exculpating defendant, should be admitted as

an exception to the hearsay rule as a statement against penal

interests based on Williams' unavailability. Defense counsel

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argued it was the State's decision to sever the trials and to try

defendant first, thereby rendering Williams unavailable to

testify. The State argued that the objective indicia of

trustworthiness listed in Chambers v. Mississippi, 410 U.S. 284,

294, 35 L. Ed. 2d 297, 308, 93 S. Ct. 1038, 1045 (1973), were not

met because the statement was not to a close acquaintance, it was

to a police officer. Also it did not make any difference that

defendant was tried first, because "if Marlon Williams goes to

trial and gets convicted he still isn't available." The State

argued that the cases were severed because it wanted to avoid any

argument that its use of Williams' confession, without any

opportunity for defendant to cross-examine Williams, deprived

defendant of his rights under the sixth amendment. Bruton v.

United States, 391 U.S. 123, 126, 20 L. Ed. 2d 476, 479, 88 S.

Ct. 1620, 1622 (1968). The trial court refused to allow defense

counsel to mention Williams' statement during oral argument.

During the trial, defense counsel sought to call Williams as a

witness, but Williams invoked his privilege against self-

incrimination. After the presentation of evidence was completed,

the court readdressed the issue. The court stated that there

could not be any due-process violation in severing the trials and

defendant's trial proceeding first because Williams' statement

was not admissible anyway.

The jury ultimately found defendant guilty of first

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degree murder, armed robbery, and home invasion. The court

sentenced defendant as stated. This appeal followed.

II. ANALYSIS

At issue on appeal is whether the trial court committed

reversible error in refusing to admit Williams' statement to

police that defendant did not know what Williams would do and

that defendant did not hit Blondeel. Defendant contends that

Williams' statement was exculpatory as to defendant in that the

statement supported that defendant was not accountable for

Williams' actions. As such, defendant argues that the trial

court's refusal to admit the statement deprived defendant of his

due-process right to present a defense. Chambers, 410 U.S. at

294, 35 L. Ed. 2d at 308, 93 S. Ct. at 1045. We review a trial

judge's decision to exclude hearsay statements under an abuse-of-

discretion standard. People v. Anderson, 367 Ill. App. 3d 653,

663-64, 856 N.E.2d 29, 38 (2006). A court abuses its discretion

when its decision is clearly against logic, when it acts

arbitrarily, without employing conscientious judgment, or when in

view of all the circumstances, the court exceeded the bounds of

reason and ignored recognized principles of law so that

substantial prejudice resulted. People v. Wear, 371 Ill. App. 3d

517, 529, 867 N.E.2d 1027, 1038 (2007).

The transcript of Williams' statement to police that

defendant sought to admit states in pertinent part:

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 "Q. [Defendant] didn't hit [Blondeel]?

A. No, [defendant] didn't touch

[Blondeel].

Q. Didn't do anything *** stab him,

didn't touch him?

A. Didn't touch him.

Q. OK. That was all you?

A. That was all me.

Q. OK, did [defendant] have any idea

what you guys [were] going to do when you

showed up down there?

A. No, but I told him *** I intentionally

wanted to go over and do that.

Q. OK, what was your intent?

A. That was my intention, to go over

there and talk to him.

Q. OK.

A. That was it.

Q. What happened to make this all ***

A. Let me see. He told me *** told me

no.

Q. He told you no about the money?

A. 'cause I didn't get the money *** no,

I wasn't gonna get no money.

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 Q. So when you hit him, asking for some

money and he said no, you just got mad? Right?

A. [no audible response]

Q. What kind of knife was it?

A. Like a flip out."

Courts are reluctant to sever trials so that a

codefendant who is unwilling to testify in his own trial may be

called as a witness. There is no assurance that the codefendant

will waive his constitutional privilege against self-

incrimination if called as a witness at a separate trial. People

v. Watkins, 3 Ill. App. 3d 560, 564, 278 N.E.2d 156, 159 (1972).

Even if the testifying defendant is tried first, this will not

inevitably wipe out any basis for his later claiming reliance

upon the privilege against self-incrimination. In the present

case, however, Williams did not claim the privilege at his own

trial but in fact testified. Even if Williams had been tried

first and then claimed the privilege at defendant's subsequent

trial, Williams' testimony would have been admissible against the

State as former testimony. 725 ILCS 5/115-10.2(f) (West Supp.

2005). Former testimony has been excluded where the State did

not have an effective opportunity to cross-examine, but that case

involved former testimony at a suppression hearing where the

State "did not have the motive to question [the] codefendant

regarding the nature of his relationship with [the] defendant."

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People v. Rice, 166 Ill. 2d 35, 41, 651 N.E.2d 1083, 1086 (1995).

The present case does not involve a suppression hearing but now

includes the actual trial of the declarant, Williams, where he

was thoroughly cross-examined on all aspects of the case.

The federal courts have refused to grant a severance

where the codefendant's testimony is conditioned on his trial

being held first. "The majority of other circuits have held

either that such a conditional promise to testify is insufficient

because defendants have no right to control the order in which a

case will be tried [citations] or that a trial court does not

abuse its discretion when it denies severance on the ground that

the willingness to testify is conditional." United States v.

McNeal, 853 F. Supp. 1047, 1050 (N.D. Ill. 1994). In the present

case, however, the decision to sever had already been made, by

the State. The State's argument, that it was attempting to

protect defendant's rights under Bruton when it severed the

cases, makes no sense. The statement was exculpatory and

defendant wanted it admitted. Defendant was not concerned about

Williams' statement being admitted without his right to cross-

examine.

Once a severance was granted in this case, was there

any reason why Williams was not tried first? Williams'

videotaped statement would have been admissible against him

whether he was tried first or second and whether or not he

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exercised his privilege against self-incrimination. The State

may have gained some advantage by the order of trials. If the

State had desired that Williams' testimony be used in defendant's

trial, it had ways to encourage that result. The State should

not be allowed to prevent Williams from testifying in defendant's

case simply because it believed his testimony would be helpful to

the defendant.

In Chambers, the defendant called McDonald to the

stand, who had previously confessed to the crime. McDonald

repudiated his confession and implicated the defendant. The

defendant was not allowed to impeach McDonald because of

Mississippi's voucher rule, that a party may not impeach his own

witness. The Supreme Court held that exclusion of this critical

evidence constituted a denial of due process. Chambers, 410 U.S.

at 302, 35 L. Ed. 2d at 313, 93 S. Ct. at 1049. The Court

recognized that declarations against penal interest are often

motivated by extraneous considerations and, therefore, are not as

inherently reliable as statements against pecuniary interest.

Nevertheless, the hearsay statements were made and offered under

circumstances that provided considerable assurance of their

reliability. Chambers, 410 U.S. at 299-300, 35 L. Ed. 2d at 311-

12, 93 S. Ct. at 1048. Chambers mentioned some objective indicia

of trustworthiness: the statements were made spontaneously to a

close acquaintance of the declarant shortly after the murder,

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they were corroborated by other evidence, they were

unquestionably against interest, and McDonald, who was present in

court, could have been cross-examined by the State.

In the present case, the trial court cited People v.

Craven, 54 Ill. 2d 419, 429, 299 N.E.2d 1, 6 (1973), for the

proposition that "the presence of these objective indicia of

trustworthiness are necessary for admissibility under the

admission against penal interest exception," concluding that none

of the required indicia were shown in this case. That approach

is not correct. People v. Bowel, 111 Ill. 2d 58, 67, 488 N.E.2d

995, 999-1000 (1986). The four factors mentioned in Chambers

"are merely guidelines to admissibility rather than hard and fast

requirements; the presence of all four factors is not a condition

of admissibility." People v. Tenney, 205 Ill. 2d 411, 435, 793

N.E.2d 571, 586 (2002). The question is rather whether the

statement "was made under circumstances [that] provide

'considerable assurance' of its reliability by objective indicia

of trustworthiness. [Citation.]" People v. Thomas, 171 Ill. 2d

207, 216, 664 N.E.2d 76, 81 (1996); see also Fed. R. Evid.

804(b)(3) (28 U.S.C. app. Fed. R. Evid. 804(b)(3) (2000))

("corroborating circumstances clearly indicate the

trustworthiness of the statement").

The declarant, in Chambers, would have been subject to

cross-examination if the defendant had been allowed to question

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him about the statement. Nevertheless, availability of the

declarant for cross-examination is not an absolute requirement.

Our supreme court, in Tenney, held that it was reversible error

to refuse to admit the hearsay statement, even though the

declarant was not available for cross-examination. Tenney, 205

Ill. 2d at 439-40, 793 N.E.2d at 588-89. Our supreme court had

addressed the issue even before Chambers: "[I]t would be absurd,

and shocking to all sense of justice, to indiscriminately apply

such a rule to prevent one accused of a crime from showing that

another person was the real culprit merely because that other

person was deceased, insane[,] or outside the jurisdiction of the

court." People v. Lettrich, 413 Ill. 172, 178, 108 N.E.2d 488,

492 (1952). Although the State would not have been able to

cross-examine Williams at defendant's trial, because Williams was

currently awaiting his own trial and probably would have

exercised his privilege against self-incrimination, the State

chose the order of trials. Even though the State would have been

unable to cross-examine Williams at trial, the police were able

to thoroughly question Williams when they took the videotaped

confession defendant sought to admit.

In Chambers, the confession was made spontaneously to a

close acquaintance shortly after the crime occurred. The present

case involves a videotaped confession to the police. "A

statement made to a law[-]enforcement officer may be made in an

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attempt to curry favor and obtain a reduced sentence; it may also

be the product of coercion or force and be involuntary. Such a

statement might not be as reliable as a statement made to a good

friend or [a] family member." Tenney, 205 Ill. 2d at 438-39, 793

N.E.2d at 588. Sometimes, however, statements made to police

officers in response to structured questioning may be more

reliable than casual statements supposedly made to acquaintances.

Statements to police officers while in custody have been admitted

in a number of cases. See, e.g., People v. Human, 331 Ill. App.

3d 809, 817, 773 N.E.2d 4, 11 (2002).

"The court in Chambers concluded a statement

to a close friend was more likely to be

trustworthy; here the statements of Andy and

Spreitzer made to a State's Attorney and

police officers while in custody were more

likely trustworthy because they tended to

intensify police efforts to prosecute Andy

and Spreitzer. Like the declarant in

Chambers, neither Andy nor Spreitzer stood to

benefit by disclosing his role in the

offenses, and each 'must have been aware of

the possibility that disclosure would lead to

criminal prosecution.'[Citation.]" People v.

Kokoraleis, 149 Ill. App. 3d 1000, 1020-21,

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 501 N.E.2d 207, 221 (1986).

The same appears true in this case. Williams did not stand to

profit by admitting his dominant role in this crime. Although

the State appeared to have clear evidence of Williams' guilt, his

confession increased the likelihood of a more severe sentence.

Williams was arrested the day the crime occurred, on May 22,

2005, and made his videotaped statement that same day. Because

the statement was made so shortly after the crime occurred, it

was not likely to be simply a "calculated statement[] made to a

police officer." People v. Caffey, 205 Ill. 2d 52, 98, 792

N.E.2d 1163, 1193 (2001).

The State argues that "Williams' attempt to deny

defendant's involvement was not directly against Williams' penal

interest." The cases the State cites in support of that

proposition, however, did not involve a situation like the

situation of our case. Instead, they involved the converse

situation, where the State attempted to use a declarant's self-

inculpatory statement, not against the declarant himself, but

against a codefendant. In Williamson, Harris told police that he

was transporting drugs for Williamson. Harris refused to testify

at Williamson's trial, but his statement was admitted under Rule

Fed. R. Evid. 804(b). The Supreme Court reversed. "The district

court may not just assume for purposes of Rule 804(b)(3) that a

statement is self-inculpatory because it is part of a fuller

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confession, and this is especially true when the statement

implicates someone else." Williamson v. United States, 512 U.S.

594, 601, 129 L. Ed. 2d 476, 483, 114 S. Ct. 2431, 2435 (1994).

"'[T]he arrest statements of a codefendant have traditionally

been viewed with special suspicion. Due to his strong motivation

to implicate the defendant and to exonerate himself, a

codefendant's statements about what the defendant said or did are

less credible than ordinary hearsay evidence.'" Williamson, 512

U.S. at 601, 129 L. Ed. 2d at 483, 114 S. Ct. at 2435, quoting

Lee v. Illinois, 476 U.S. 530, 541, 90 L. Ed. 2d 514, 526, 106 S.

Ct. 2056, 2062 (1986). The strict requirements imposed on

hearsay statements which inculpate the defendant were designed to

satisfy confrontation-clause concerns, but the confrontation

clause protects defendants, not prosecutors. When a defendant

attempts to use an exculpatory statement it is not necessary that

the declarant confess to the exact crime for which the defendant

is on trial. People v. Turner, 373 Ill. App. 3d 121, 125, 866

N.E.2d 1215, 1219 (2007). A declaration against penal interest

is simply "one that would be admissible against the declarant in

a criminal prosecution; it need not be a confession, but must

involve exposure to criminal liability." Tenney, 205 Ill. 2d at

436, 793 N.E.2d at 587.

It is true that the fact that a statement contains some

incriminating material may not justify admission of the entire

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statement, particularly where the statement is used to inculpate

rather than exculpate the defendant. However, a declarant's

statement that he committed the crime is the classic example of a

statement against penal interest, even though the logical import

of the statement is that defendant did not commit the crime. In

the Williams case cited by the State, defendant Bobby O.

Williams' request to admit the statement of Simpson, that "Fred"

shot a convenience-store clerk, was properly denied even though

Simpson admitted that he drove "Fred" to the convenience store

for the purpose of committing a robbery. The statement did not

really inculpate Simpson; rather, it was overwhelmingly

exculpatory. "[B]ecause these statements were self-exculpatory,

they were properly found inadmissible, despite their connection

to Simpson's other, self-inculpatory statements." People v.

Williams, 193 Ill. 2d 1, 23, 737 N.E.2d 230, 243 (2000).

The present case does not involve the "bogus-

confession" situation exemplified by People v. Tate, 87 Ill. 2d

134, 137-39, 429 N.E.2d 470, 472-73 (1981). In Tate, "a close

friend of defendant['s]" testified a third party had told him

that the third party had been the robber but at trial the third

party denied the statement. Tate, 87 Ill. 2d at 139, 429 N.E.2d

at 473. There is no doubt in this case that Williams made the

statement in question. When the statement is made to a police

officer, we are not forced to rely upon "a close friend of

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defendant[’s]" to determine whether the statement was made or its

exact language. In the present case, we are not even forced to

rely upon the testimony of a police officer. There is a

videotape. The State does not dispute that much of what Williams

said in the statement was true.

There clearly were corroborating circumstances here

which indicate the trustworthiness of Williams' statement.

Marlon Williams was later convicted of first degree murder, armed

robbery, and home invasion. During Williams' appeal, the State

argued that any disparity between his and defendant's sentences

was warranted due to the extent of Williams' participation in the

crime when compared to defendant's participation. Although his

videotaped statement was not played for the jury, prosecutors

cross-examined Williams with portions of his confession which

exculpated defendant. It is anomalous for the State to oppose

admission of a declarant's hearsay statement for defendant when

the State uses the same evidence to convict the declarant.

Tenney, 205 Ill. 2d at 440, 793 N.E.2d at 589. If evidence "'is

sufficiently reliable for prosecutorial use, the state cannot

claim that it is too unreliable when offered by the defendant.'"

Tenney, 205 Ill. 2d at 440, 793 N.E.2d at 589, quoting Pettijohn

v. Hall, 599 F.2d 476, 481 (1st Cir. 1979). In Tenney, the State

had already used the statement in Lane's trial when it objected

to defendant's use of the statement in his trial. Tenney, 205

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Ill. 2d at 440, 793 N.E.2d at 588-89. That is not true in the

present case, but the State had to have decided whether Williams'

statement was reliable long before it used it in Williams' trial.

Williams' statement was further corroborated by the

surviving victim, Ryan, who told police that only Williams did

anything, that defendant did not do anything, that she could tell

defendant did not want to be there and wanted to leave, and

defendant "was the reason why [she] was still alive." Ryan

changed her account at trial, which defendant argues resulted

from her perception that the police regarded her as a suspect.

The jury should have been allowed to decide which version was

true. Corroboration does not require that the judge be

completely convinced that exculpatory statements are true prior

to their admission. The judge must find only that sufficient

corroborating circumstances exist and then permit the jury to

make the ultimate determination concerning the truth of the

statements. Tenney, 205 Ill. 2d at 437, 793 N.E.2d at 587. "'If

the issue of sufficiency of *** corroboration is close, the judge

should favor admitting the statement. In most such instances,

the good sense of the jury will correct any prejudicial impact.'"

Tenney, 205 Ill. 2d at 437, 793 N.E.2d at 587, quoting

Commonwealth v. Drew, 397 Mass. 65, 75 n.10, 489 N.E.2d 1233,

1241 n.10 (1986).

As in Tenney, we cannot say that the exclusion of

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Williams' hearsay statement did not affect the outcome of

defendant's trial. Tenney, 205 Ill. 2d at 441, 793 N.E.2d at

589. Defendant argued the testimony that he had spoken of

robbing Blondeel before the offense was confused and conflicting,

and that Williams unexpectedly became violent. Defendant argued

that he feared Williams would kill him, as Williams had killed

Blondeel, if he ran from the crime scene, did not follow

Williams' directions, or did not take part of the money to

indicate he would not inform on Williams. As the State points

out, even without Williams' statement, all of the prosecution's

evidence showed that Williams, and not defendant, had stabbed

Blondeel. "From this evidence, the jury could have inferred the

facts supporting defendant's case. However, this inference was

no substitute for [the] confession, which would have provided

crucial substantiation of defendant's asserted defense." Tenney,

205 Ill. 2d at 441, 793 N.E.2d at 589. "[T]he exclusion of such

evidence 'deprived appellant of crucial substantiation of his

asserted defense ***. *** As a result, his case was "far less

persuasive than it might have been."'" Tenney, 205 Ill. 2d at

441, 793 N.E.2d at 589, quoting United States v. Benveniste, 564

F.2d 335, 341-42 (9th Cir. 1977), quoting Chambers, 410 U.S. at

294, 35 L. Ed. 2d at 308, 93 S. Ct. at 1045.

Although the outcome of this case may have been

different if Williams' videotaped statement had been admitted,

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and the error in refusing to admit the statement was not

harmless, the evidence was sufficient to prove defendant guilty

beyond a reasonable doubt. We therefore find that there is no

double jeopardy impediment to a new trial.

III. CONCLUSION

For the aforementioned reasons, we reverse and remand

the trial court's judgment for a new trial in accordance with our

decision in this case.

Reversed and remanded.

MYERSCOUGH and KNECHT, JJ., concur.

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