Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten
Court Affirms Use of Hearsay Statements Under Forfeiture-by-Wrongdoing Exception
In People v. Gardner, 2024 IL App (4th) 230443, the Fourth District Appellate Court held that the state established the defendant caused his girlfriend, Terriona White, to be unavailable as a witness and as a result the state could present her hearsay statements under the forfeiture-by-wrongdoing hearsay exception.
In Gardner, the defendant was charged with possession of a stolen vehicle and unlawful use of weapons by a felon. Police responded to White’s apartment after the defendant sent her threatening messages because she had hidden his gun clip. 2024 IL App (4th) 230443 at ¶¶1, 5.
The officer’s bodycam recorded his conversation with White. White told the officer that the defendant had stolen the plates to a GMC truck that was parked outside. White said that the defendant’s aunt told her the defendant had stolen the plates and put them on the GMC truck. 2024 IL App (4th) 230443 at ¶6.
The defendant made several phone calls from jail to White asking her to recant and state that the gun belonged to her. White refused this demand on the phone calls and told the defendant that she did not want to be charged with obstruction of justice or a gun offense. 2024 IL App (4th) 230443 at ¶10.
The defendant posted bond, and the no-contact provision was removed after a hearing. The state was unable to serve White with a subpoena despite 27 attempts by the sheriff’s office. The state’s motion in limine to allow some of White’s statements to the officer was granted under the forfeiture-by-wrongdoing exception. 2024 IL App (4th) 230443 at ¶¶11 – 12.
The officer testified at trial that White told him she believed that the vehicle was stolen and had fictitious plates. 2024 IL App (4th) 230443 at ¶15. The defendant was convicted of all charges. 2024 IL App (4th) 230443 at ¶17.
The appellate court affirmed the trial court’s ruling on White’s testimony coming in under the forfeiture-by-wrongdoing exception. Illinois Rule of Evidence 804(b)(5) states that a statement is not hearsay if it is “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” The state must prove this by a preponderance of the evidence. 2024 IL App (4th) 230443 at ¶22.
The appellate court rejected the defendant’s argument that there was no evidence that White was afraid of him and therefore the state failed to show he engaged in wrongdoing. The appellate court stated the state needed to show only that the defendant engaged in witness tampering or some type of conduct designed to thwart the judicial process. The state was not required to prove that the defendant secured the witness’s absence through threats or intimidation. 2024 IL App (4th) 230443 at ¶25.
The appellate court emphasized that the defendant repeatedly asked White to testify differently than what she believed was the truth despite bond conditions that forbade him from contacting her. The appellate court stated that “[v]iolating 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.” 2024 IL App (4th) 230443 at ¶26.
The appellate court next rejected the defendant’s argument that the state failed to prove that his actions were intended to cause White’s unavailability. The appellate court noted that the state was required to show only that the defendant’s wrongdoing “was motivated ‘at least in part’ by an intent to prevent her from testifying.” 2024 IL App (4th) 230443 at ¶28.
The appellate court next concluded that the state circumstantially proved that the defendant caused White’s unavailability. The defendant discouraged her in the jail calls from testifying to what she believed was the truth, namely that the gun belonged to the defendant. 2024 IL App (4th) 230443 at ¶33.
The appellate court also disagreed with the defendant’s contention that there was no evidence that he explicitly instructed White to evade service because the state was not required to prove that he caused her to take any particular action to become unavailable. The state had to show merely that he procured her unavailability as a witness. 2024 IL App (4th) 230443 at ¶35.
For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.