People v. Tracewski

Filed 5/13/10 NO. 4-08-0707

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
LAURIE A. TRACEWSKI ) No. 07CM610
Defendant-Appellant. )
) Honorable
) Paul G. Lawrence,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE MYERSCOUGH delivered the opinion of

the court:

Defendant, Laurie A. Tracewski, appeals the trial

court's guilty finding on one count of domestic battery, arguing

a prior inconsistent statement from the victim was not admissible

pursuant to section 115-10.1 of the Code of Criminal Procedure of

1963 (Code) (725 ILCS 5/115-10.1 (West 2008)) and that the

admission of the prior inconsistent statement violated her sixth-

amendment right to confrontation. We affirm.

I. BACKGROUND

On March 26, 2007, the State charged defendant with two

counts of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2006)),

in that she knowingly and without legal justification made

physical contact of an insulting or provoking nature with Lisa

Gipson (count I) and Lyle Hudson (count II).

A bystander's report revealed the following facts. On
May 19, 2008, defendant signed a document indicating she was

pleading not guilty and waiving a jury trial. The trial court

admonished her as to each right she was giving up. Defendant

indicated she understood her rights.

A bench trial was held on August 25, 2008. Lisa

Gipson, defendant's sister, testified that on March 25, 2007,

Gipson, defendant, and Lyle Hudson (Gipson's boyfriend) were at

501 East Mulberry, Apartment 3, in Bloomington, Illinois. Gipson

identified defendant in open court but stated she did not recall

the events from March 25, 2007, because she had been drinking for

a month straight. However, Gipson acknowledged writing and

signing the statement in State's exhibit No. 1, which was dated

March 25, 2007, and stated as follows: "[Defendant] kicked Lyle

Hudson's door and then hit him and myself. She kicked me in my

head and arm." The injuries shown in State's exhibit Nos. 2 and

3 are injuries to Gipson's leg and scratch on her left arm

respectively. Gipson stated she did not recall how she received

the injuries. Gipson stated she has a good relationship with

defendant.

On cross-examination, Gipson testified she had been on

Darvocet for a concussion, she was not supposed to be drinking,

and that she blacked out on the night of the alleged incident.

She again stated she did not recall writing the statement con-

tained in State's exhibit No. 1. However, Gipson did remember

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being pushed down the stairs, but the bystander's report did not

say by whom.

Ivy Thornton, a Bloomington police officer, testified

she spoke to defendant and the two alleged victims on the date in

question. Defendant, Gipson, and Hudson were all intoxicated.

Defendant was very intoxicated. Gipson was very cooperative and

was not as intoxicated as defendant and Hudson. Officer Thornton

stated she heard Hudson say to defendant "Don't hit me again.

Stop hitting me." Officer Thornton also stated defendant denied

doing anything. Gipson had a cut on her arm and red marks on one

of her knees and lower legs. Gipson told Officer Thornton that

defendant kicked her in the shin and cut her arm because defen-

dant wanted to use Gipson's cell phone and got angry. State's

exhibit No. 5 was a photograph of Hudson's leg.

Eric Yamada, a Bloomington police officer, stated that

he heard a male and female yelling when he arrived at the scene.

Officer Yamada did not recall if Gipson had any trouble filling

out the statement on State's exhibit No. 1 but stated she did

fill it out voluntarily. Gipson and defendant were intoxicated.

Gipson told Officer Yamada that defendant kicked her in the arm

and head.

State's exhibit Nos. 1 through 5 were admitted without

objection, and the State rested. Defendant moved for a directed

verdict, and the trial court denied the motion. Defendant did

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not present any evidence. Closing arguments were made. The

trial court admitted Gipson's statement made in State's exhibit

No. 1 as substantive evidence under section 115-10.1 of the Code

(725 ILCS 5/115-10.1 (West 2008)) and found defendant guilty of

count I and not guilty of count II.

On August 25, 2008, the trial court sentenced defendant

to 24 months of conditional discharge and 90 days in McLean

County jail that was stayed pending a remission hearing.

This appeal followed.

II. ANALYSIS

On appeal, defendant argues she was denied her right to

cross-examine Gipson in violation of the confrontation clause

under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124

S. Ct. 1354 (2004), and section 115-10.1 of the Code (725 ILCS

5/115-10.1 (West 2008)). Specifically, defendant contends the

trial court erred in admitting Gipson's written statement because

defendant was not able to effectively cross-examine Gipson due to

Gipson's memory loss. The State maintains that defendant's

sixth-amendment right to confrontation was not violated because

Gipson was subject to cross-examination and Gipson's written

statement satisfied both Crawford and section 115-10.1.

Initially, we recognize the State's argument that

defendant forfeited these issues because she did not file a post-

trial motion arguing them. Defendant's brief did not argue these

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issues should be reviewed under the plain-error doctrine.

However, as discussed below, the trial court committed no error

in admitting Gipson's written statement so there can be no plain

error.

"It is important to note that in deter-

mining whether a prior out-of-court statement

is admissible, the proponent of the statement

first must meet the requirements of the ap-

plicable statutory hearsay exception as set

out in section[s] 115-10[ through 115-10.5 of

the Code] (725 ILCS 5/115-10 [through 115-

10.5] (West 2002)). The holding in Crawford

should be considered only after the court

determines the proffered statement complies

with the requirements of the applicable stat-

ute." People v. Martinez, 348 Ill. App. 3d

521, 535, 810 N.E.2d 199, 212 (2004).

First, Gipson's written statement satisfies the re-

quirements of section 115-10.1 of the Code. See People v.

Hampton, 387 Ill. App. 3d 206, 213, 899 N.E.2d 532, 538-39

(2008). Second, the trial court's decision to admit as substan-

tive evidence Gipson's prior statement was not an abuse of

discretion. See People v. Flores, 128 Ill. 2d 66, 87-88, 538

N.E.2d 481, 489 (1989).

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 "Section 115-10.1 of the Code provides for the substan-

tive admissibility of prior inconsistent statements in criminal

cases." People v. Zurita, 295 Ill. App. 3d 1072, 1076, 693

N.E.2d 887, 891 (1998). The statute reads in relevant part as

follows:

"In all criminal cases, evidence of a

statement made by a witness is not made inad-

missible by the hearsay rule if

(a) the statement is inconsistent with

his testimony at the hearing or trial, and

(b) the witness is subject to cross-

examination concerning the statement, and

(c) the statement--

***

(2) narrates, describes,

or explains an event or condi-

tion of which the witness had

personal knowledge, and

(A) the statement is

proved to have been writ-

ten or signed by the

witness, or

(B) the witness

acknowledged under oath

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 the making of the state-

ment either in his testi-

mony at the hearing or

trial in which the admis-

sion into evidence of the

prior statement is being

sought, or at a trial,

hearing, or other pro-

ceeding[.]***

***

Nothing in this [s]ection shall render a

prior inconsistent statement inadmissible for

purposes of impeachment because such state-

ment was not recorded or otherwise fails to

meet the criteria set forth herein." 725

ILCS 5/115-10.1 (West 2008).

Here, the bystander's report shows during Gipson's

trial testimony she acknowledged writing and signing the state-

ment contained in State's exhibit No. 1 but claimed not to

remember the events of March 25, 2007, because she had been

drinking for a month straight. On cross-examination, Gipson

testified she "blacked out" because she was on medication and was

not supposed to drink alcohol. She claimed not to recall writing

the statement.

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 "In determining whether the cross-examination require-

ment of section 115-10.1 was satisfied, our supreme court has

stated that it is sufficient if 'the declarant is testifying as a

witness and subject to full and effective cross-examination.'"

People v. Watkins, 368 Ill. App. 3d 927, 931, 859 N.E.2d 265, 268

(2006), quoting Flores, 128 Ill. 2d at 88, 538 N.E.2d at 489.

"A defendant is not entitled to a successful

cross-examination of a witness about the

events underlying his prior statement but,

rather, is merely provided an opportunity for

effective cross-examination. [United States

v.] Owens, 484 U.S. [554,] 559, 98 L. Ed. 2d

[951,] 958, 108 S. Ct. [838,] 842 [(1988)].

For instance, a witness's inability to recall

the basis for his testimony does not deprive

a defendant of the opportunity for effective

cross-examination. Flores, 128 Ill. 2d at

89-90[, 538 N.E.2d at 489], quoting Owens,

484 U.S. at 559, 98 L. Ed. 2d at 958, 108 S.

Ct. at 842 (noting that a witness's assertion

of memory loss is often the goal of cross-

examination)." Watkins, 368 Ill. App. 3d at

931, 859 N.E.2d at 269.

Both the Flores and Watkins courts rejected arguments

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that prior inconsistent statements were improperly admitted under

115-10.1 of the Code. The Flores court found that the trial

court properly admitted a witness's grand jury testimony despite

that witness's claim at trial that he could not recall having a

conversation with the defendant regarding the death of the

victim. Flores, 128 Ill. 2d at 87-88, 538 N.E.2d at 488-89.

In Watkins, two witnesses answered "'I don't remem-

ber,'" "'I don't recall,'" or "'I can't remember'" to almost

every question asked of them at trial. Watkins, 368 Ill. App. 3d

at 929, 859 N.E.2d at 267. The defendant challenged the admis-

sion of prior inconsistent statements to police and the grand

jury implicating the defendant in an aggravated battery based on

the allegation the witnesses were not subject to meaningful

cross-examination because of their professed memory loss regard-

ing their prior statements. Watkins, 368 Ill. App. 3d at 930,

859 N.E.2d at 267. The Watkins court rejected this argument and

stated the witness's "asserted memory loss did not deprive

defendant of the opportunity for an effective cross-examination."

Watkins, 368 Ill. App. 3d at 933, 859 N.E.2d at 270.

Defendant relies on People v. Yarbrough, 166 Ill. App.

3d 825, 520 N.E.2d 1116 (1988), for the proposition she was

denied her right to effectively cross-examine Gipson. However,

Yarbrough is distinguishable because the witness in that case

claimed not to even remember testifying before the grand jury.

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Yarbrough, 166 Ill. App. 3d at 831, 520 N.E.2d at 1120.

Here, the bystander's report indicates that on direct

examination Gipson acknowledged writing and signing the statement

but could not recall the events. On cross-examination, Gipson

claimed not to recall writing the statement. Further, of import,

Yarbrough predates our supreme court's decision in Flores. "One

of the policies underlying section 115-10.1 of the Code is to

protect parties from 'turncoat' witnesses who back away from a

former statement made under circumstances indicating that it was

likely to be true." People v. Speed, 315 Ill. App. 3d 511, 517,

731 N.E.2d 1276, 1281 (2000). Notably, Gipson is defendant's

sister and her statement was made shortly after the incident.

Therefore, Gipson's written statement satisfies the requirements

of section 115-10.1.

However, to be admissible, a witness's prior inconsis-

tent statement must not only satisfy the requirements under

section 115-10.1 but also satisfy the confrontation clause.

People v. Leonard, 391 Ill. App. 3d 926, 934, 911 N.E.2d 403, 411

(2009). The confrontation clause of the sixth amendment requires

that "[i]n all criminal prosecutions, the accused shall enjoy the

right *** to be confronted with the witnesses against him." U.S.

Const., amend. VI. "The confrontation clause guarantees an

opportunity for effective cross-examination, not cross-examina-

tion that is effective in whatever way, and to whatever extent,

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the defense may wish." Hampton, 387 Ill. App. 3d at 214, 899

N.E.2d at 539. In Owens, the Supreme Court stated that the

confrontation clause is not "violated by admission of an identi-

fication statement of a witness who is unable, because of a

memory loss, to testify concerning the basis for the identifica-

tion." Owens, 484 U.S. at 564, 98 L. Ed. 2d at 961, 108 S. Ct.

at 845. The Owens Court further stated as follows:

"Ordinarily a witness is regarded as 'subject

to cross-examination' when he is placed on

the stand, under oath, and responds willingly

to questions. Just as with the constitu-

tional prohibition, limitations on the scope

of examination by the trial court or asser-

tions of privilege by the witness may under-

mine the process to such a degree that mean-

ingful cross-examination within the intent of

the [r]ule no longer exists. But that effect

is not produced by the witness'[s] assertion

of memory loss--which, as discussed earlier,

is often the very result sought to be pro-

duced by cross-examination, and can be effec-

tive in destroying the force of the prior

statement." Owens, 484 U.S. at 561-62, 98 L.

Ed. 2d at 959, 108 S. Ct. at 844.

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See also Leonard, 391 Ill. App. 3d at 934, 911 N.E.2d at 411

("Generally, a witness is considered subject to cross-examination

when he is placed on the stand under oath and willingly answers

questions and the opposing party has an opportunity to cross-

examine him").

The bystander's report shows that Gipson physically appeared at

trial and was subject to cross-examination by defense counsel.

"There are no confrontation[-]clause problems merely because the

witness's memory problems preclude him from being cross-examined

to the extent the parties would have liked." Leonard, 391 Ill.

App. 3d at 934-35, 911 N.E.2d at 411. Therefore, the admission

of Gipson's written statement did not violate defendant's sixth-

amendment right to confront the witnesses against her.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we award the State its $50

statutory assessment against defendant as costs of this appeal.

Affirmed.

POPE, J., concurs

STEIGMANN, J., specially concurs

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 JUSTICE STEIGMANN, specially concurring:

In arguing that defendant's confrontation-clause rights

were violated, he places great weight upon the Fifth District's

22-year-old decision in Yarbrough. The majority distinguishes

Yarbrough, but I disagree that we should do so. Instead, because

Yarbrough was not correctly decided and has since been repudiated

(at least implicitly) by several Illinois cases, we should now

explicitly repudiate it. Thus, I specially concur although I

agree with everything else the majority opinion holds.

Yarbrough stands for the proposition that a witness'

prior inconsistent statements would not be admissible under

section 115-10.1 of the Code if, when that witness testifies at

trial, he is not "subject to meaningful cross-examination"

concerning those prior statements because the witness claims that

"he cannot remember making the out-of-court statement or the

substance of that statement." Yarbrough, 166 Ill. App. 3d at

831, 520 N.E.2d at 1120. The Yarbrough court added, "Obviously,

[the] defendant cannot cross-examine a witness with respect to

the truth or falsity of an out-of-court statement of which the

witness has no memory." Yarbrough, 166 Ill. App. 3d at 831, 520

N.E.2d at 1120.

To reach this decision, the Yarbrough court relied upon

Douglas v. Alabama, 380 U.S. 415, 13 L. Ed. 2d 934, 85 S. Ct.

1074 (1965), in which a witness invoked his privilege against

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self-incrimination and refused to answer any questions.

Yarbrough, 166 Ill. App. 3d at 831, 520 N.E.2d at 1120. However,

Douglas was the wrong case to find United States Supreme Court

authority regarding what it means for a witness "to appear for

cross-examination" within the meaning of the confrontation

clause.

The two United State Supreme Court cases on point, both

of which were decided prior to Yarbrough, are Delaware v.

Fensterer, 474 U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985),

and United States v. Owens, 484 U.S. 554, 98 L. Ed. 2d 951, 108

S. Ct. 838 (1988). Each of these cases dealt with witnesses who,

for different reasons, had significant memory lapses regarding

the subject of their testimony when they testified as key wit-

nesses against the defendants in those criminal cases. In

Fensterer, the Supreme Court rejected the defendant's

confrontation-clause argument and wrote that "[g]enerally speak-

ing, the [c]onfrontation [c]lause guarantees an opportunity for

effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense

might wish." (Emphasis in original.) Fensterer, 474 U.S. at 20,

88 L. Ed. 2d at 19, 106 S. Ct. at 294. In Owens, the Supreme

Court reaffirmed its holding in Fensterer and wrote that

"[o]rdinarily a witness is regarded as 'subject to cross-examina-

tion' when he is placed on the stand, under oath, and responds

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willingly to questions." Owens, 484 U.S. at 561, 98 L. Ed. 2d at

959, 108 S. Ct. at 844.

In two cases dealing with section 115-10.1 of the Code,

the Supreme Court of Illinois has made clear that Fensterer and

Owens govern the question of whether a witness "has appeared for

cross-examination" within the meaning of the confrontation

clause. Those cases are Flores, 128 Ill. 2d at 88, 538 N.E.2d at

489, cited by the majority, in which the Supreme Court wrote that

"a gap in the witness' recollection concerning the content of the

prior statement does not necessarily preclude an opportunity for

effective cross-examination," and People v. Sutton, 233 Ill. 2d

89, 121, 908 N.E.2d 50, 70 (2009), in which the Illinois Supreme

Court held that "an opportunity for effective cross-examination

is not denied when a witness'[] past belief is introduced, and he

is unable [or unwilling] to recollect the reason for that past

belief."

Moreover, as stated earlier, many decisions of the

Illinois Appellate Court have repudiated the holding and analysis

of Yarbrough either sub silentio or more explicitly. One of the

most recent to do so was Hampton, cited by the majority, in which

the First District rejected the defendant's reliance upon both

Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S.

Ct. 1354 (2004), and Yarbrough in his argument that his

confrontation-clause rights were violated when a State's witness'

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out-of-court statement was admitted under section 115-10.1 of the

Code, and the witness claimed not to be able to remember impor-

tant aspects of what he said in his prior statement. The First

District in Hampton wrote that "decisions issued by the United

States Supreme Court and the Illinois Supreme Court after

Yarbrough was published render its authority questionable."

Hampton, 387 Ill. App. 3d at 213, 899 N.E.2d at 539. (For a

compendium of Illinois cases, as well as cases from other juris-

dictions, rejecting the confrontation-clause analysis in

Yarbrough and explaining in greater detail the application of

Fensterer and Owens, see the recent decision of this court in

People v. Bryant, 391 Ill. App. 3d 1072, 909 N.E.2d 391 (2009).)

Contrary to my distinguished colleagues in the First

District, as well as my distinguished fellow panelists in this

case, I believe the time is long past to stop (1) referring to

Yarbrough as "distinguishable" and (2) noting that Yarbrough's

authority is "questionable." Instead, we should say what we

mean: Yarbrough was wrongly decided and this court (and other

courts) should not follow it. To say that its authority is

questionable or to attempt to distinguish it merely empowers

defendants, like the one in this case, to continue to cite

Yarbrough in support of erroneous arguments.

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