Oral argument — People v. Chatham

the fourth district appellate court of the state of illinois has now convened the honorable james a connect presiding this is our case 4 21 0 7 1 6 people of the state of illinois versus michael chapman would the appellant please state your name for the record yes uh chris bendick from the office of the state appellate defender for michael chapman and for the appellate john zimmerman with the state your honor thank you mr bendick you may proceed may it please the court good afternoon your honors counsel my name is chris bendick from the office of the state appellate defender represent the appellant michael chapman dominique collins's december 2019 recorded statement implicated michael chapman in the march 2018 shooting of ricky green that statement was crucial to the state's case against chapman pre-trial the court held two hearings on whether the state had made good faith efforts to secure collins's presence a new trial should occur as the trial court's conclusion that the state and its actors made good faith efforts was unreasonable and where the state has not demonstrated that this error was harmless beyond a reasonable doubt additionally a new trial should occur where the trial court abuses discretion in allowing detective christian the state's lead investigator and who collins's statement to remain in the courtroom throughout the trial and where that presence prejudiced chapman starting with the trial court's finding that the state made good faith efforts to secure collins's presence at trial the forfeiture by wrongdoing doctrine is two parts only the second part of which yes your honor before you get there i apologize for interrupting you but you're essentially arguing that the state did not make a good faith effort and reasonable effort to locate collins what uh leads your lines of investigations do you believe the prosecutor failed to do here well specifically the prosecutor failed to do any investigation and that is uh an prosecutor the prosecution had their investigators so uh let's just phrase it with respect to the investigators what what leads do you or lines of investigation should they have undertaken undertook in this case well and and i do i i do want to clarify your honor people v pain makes it clear that the state controls the officers here and so um when we had these two hearings between may 2021 and september 21 we knew that collins was a missing witness yet the prosecution did nothing between those six months to ensure that detective christian was doing all that he could um specifically what should have occurred uh a subpoena should have been issued for uh mr collins there's no indication in the record of any subpoena being issued and i that a subpoenaing a witness is routinely considered by our courts and federal courts in determining whether the state has demonstrated good faith in uh but demonstrating that a witness is unavailable what would be the purpose of subpoenaing a witness that you have no idea where his or her location is it's well first it's so you would get a subpoena from the court but you would have nowhere to serve that subpoena that is not correct your honor in fact the detective christian visited six separate addresses on august 24th and 25th one of those was supposedly close enough in time and i'm just getting the location of that address right now apologize your honor um it was one second here it was a local address on green street your honor in champaign um that collins had used fairly recently a subpoena could have been issued for that address just like the state issued subpoenas for two other missing witnesses the anderson sisters and and the anderson sisters did not comply with that subpoena warrants went out and both of those witnesses testified under threat of contempt of court so what should have been i hear what you're saying but you couldn't get a body attachment unless he was served so the mere fact that we there then service can be effectuated by mail your honor and if that comes back unreturnable it's still and warrant can be issued in that circumstance your honor for supreme court rule so that's what should have occurred here in order for good faith to have been demonstrated by the state this was an easy step the state i have no explanation as to and i don't think the state will get up here and say that there was an explanation for why a subpoena wasn't attempted to be issued um it boggles the mind why that didn't occur between if it didn't happen before may 2021 it should have occurred between may and september um and people be paying makes that i don't i don't think you're answering justice bridges question you keep saying this subpoena should have been issued but if there's no one to serve it on what difference does it make if we we if we have a valid address and we do because we know detective christian is attempting to locate them at addresses that collins has used in the very recent past we know that at the green street address that's from his testimony at the hearing and that's one of the basis for the trial court's finding that there was good faith is these attempts at these addresses service can be done by mail your honor and if it's not handed to him in person it could be to the last known address if it comes back and it's not he doesn't come into court a warrant can be issued by the trial court that's just a simple fact and that just was not done here by the state um and united states supreme court precedent dictates that's ohio v roberts says that you know the law doesn't require doing a futile act but if there is a possibility albeit remote that affirmative measures might produce the declarant the obligation of good faith may demand their effectuation and that just had to occur in this case your honor and in fact the state acknowledged it needed to make good faith efforts as it acknowledged in its forfeiture by wrongdoing motion uh that it needed to demonstrate good faith before it could present the recorded statement at trial i i think that one of the things that is reflected in the questions that you've received is that you want to rely on paper i.e a subpoena and that that's a way to show good faith but from the testimony which is not refuted there were three or four addresses that he went to in port i mean does that count for anything or is that just you know well yes but you still ignored the opportunity to issue a subpoena those are to be considered you know the the rule of evans 804a dictates that you can consider either process or other reasonable means but here the there were not sufficient reasonable means i mean let's take a look at this hyper local website that doesn't even extend beyond maybe bloomington at best um you know that that we have no idea whether the amount of times that it was visited was by a single person was it separate views how how often were those views occurring between the hearings but regarding the addresses even um detective christian admitted that some of the addresses he had no reason to think that collins lived at those addresses anymore i mean that is his testimony at the hearing and i think you know maybe the the most recent one was either the green street in champaign or in kendall county so let's one of those addresses try to subpoena him just like the state knew how to do this did it for the anderson sisters why didn't it do it for collins is the question so if i'm hearing you correctly the only issue you have is the fact they did not mail a subpoena because it's pretty clear as justice connect testified that the officers were searching for this guy everywhere they could think he was at as you said they went to numerous addresses both in the state and out of the state so the only thing that you claim is error was the failure to send a subpoena am i hearing you correctly no that is not correct your honor okay what else could they have done what what else they could have done in this case this yes yeah i just want to make sure i just want to make this case here yes they have they have his telephone number his telephone number the for some reason detective christian cannot provide the date that he last contacted mr collins via phone there's no information as to this brief phone call other than oh it i didn't recognize the voice and the person that responded said wrong number okay somehow this this this phone number is now somehow not become attached to collins i mean any detective at that point who's doing a diligent search for this witness should have been figured out okay does this telephone number still belong to mr collins if it does then we can search those records find out where those phone calls are coming from where it's located um the state simply just cannot throw up its hands like oh we visited a couple addresses we put it on a it doesn't matter about the number of visits you know and people be paying it was 20 to 25 attempts to locate that witness and yet the first district said no those weren't good faith efforts it's not the quantity it's the quality of the efforts and here the quality of the efforts by detective christian and the lack of any effort by the prosecution frankly dictates that the trial court was unreasonable in concluding that there were good faith efforts here and the state has not demonstrated that the trial courts err here in allowing chapman's confrontation rights to be violated where there was no showing of good faith was harmless beyond a reasonable doubt the state's argument on this issue on harmlessness is essentially a sentence and case law dictates that that is not a sufficient enough argument for this court even if this court concludes that it was sufficient the state's argument still fails on the merits you know while there's still some evidence in the record implicating chapman this is not a sufficiency argument this is a harmless error beyond a reasonable doubt and the state needs to demonstrate that and they cannot in this case because collins's evidence some of the most strongest evidence against him it included a supposed confession just supposedly after this alleged um crime and the case law shows that the effect on a jury is incalculable a confession further the jury found chapman not guilty on finding him guilty of felony murder thus the confession where collins supposedly hears chapman saying oh we intended to rob green we did and then we shot him of course that had an effect on the jury's verdict here and the evidence was not overwhelming counsel i know who has the burden in this case and it lied uh with the state but the defense was unable to locate mr collins as well isn't that correct the defense has no burden to i just told you that i know that but did the defense locate him they attempted for obvious reasons to locate him because they knew that if he didn't come in presumably a wrong do forfeiture by wrongdoing would allow his statement in and maybe if they reached him he might recant that statement so uh the defense was not successful in locating him is that correct there is no evidence in the record that the defense team was trying to like subpoena uh mr collins there is a brief mention during the hearing based on detective christian listening to phone calls that chapman and his mother um they had not been able to locate collins but there's there's no burden on the defense because the burdens on the state if they want to um vitiate chapman's confrontation rights counsel counsel don't don't don't lecture us on the burden justice bridges told you he knows the burden he just asked the question did the defense located the answer is no and you said then there's no evidence in the record they made an effort to locate okay i'm sorry i thought i apologized i thought justice just this is a justice bridges question was to harmless air he had mentioned harmless air not the burden to bring in so i apologize your honor if that was um my miscommunication i apologize you may proceed thank you your honor um given all of the state's lack of efforts to find collins to subpoena him to then get a warrant and the state's failure on a an appeal to demonstrate that the air was harmless beyond a reasonable doubt this court should reverse his conviction and remand the case for a new trial now turning to detective christian's presence in the courtroom through the trial case law demonstrates witnesses are to be routinely excluded during trial here the trial court abused its discretion when it allowed one of the state's star witnesses detective christian to remain in the courtroom throughout the trial and testify as the state's last witness in its case in chief and the trial court even recognized how odd a request that was was not aware of the prosecution asking for that in the last 20 years and that it smelled funny chapman was prejudiced by this air when christian testified to unmemorialized threats allegedly on behalf of chapman made towards collins and further prejudice when the trial court overruled trial counsel's objection when the prosecutor told the jury that collins had been told he better not come to court the state's harmless air argument here merely harkens back to its insufficient argument as to issue one collins and christians were integral parts of the state's case against chapman and provided some of the most damaging testimony against chapman in fact the illinois supreme court has recognized that showing a prejudice would be impossible or inordinately difficult to make in any case and that's people be dixon so if this course doesn't come so i think you're mixing i apologize counsel but you you started off talking about the issue you're raising here is the second issue in your brief and that's allowing detective christians to sit at the defense council table so with respect to the prejudice here uh didn't christian testify only about the the testimony provided to him the threats made towards collins um yes but it was it was regarding threats towards collins from chapman and then he testified to unmemorialized threats to collins we and we don't know at that point it's and no other state's i'd have to review all the testimony again you're not what i'm trying to get at is what i'm trying to get at is so where is the prejudice if palin said at the defense i mean state's council table testified about evidence in the trial that no other witness testified to how was your client prejudiced well first i'll point this court to dixon which shows that such a showing would be impossible or inordinately difficult to make in any case as to such an error second here those unmemorialized threats are the prejudice because of how important collins as well as christian were to the state's and again so your argument isn't the your argument isn't connected to him sitting remaining in courtroom sitting at the council table your argument of prejudice is the content of his testimony yes the air was allowing him to remain at the table and the prejudice is this unmemorialized threat he testifies to and then the state using that unmemorialized threat over objection during closing argument yes your honor um your honors have no further questions as to either the first issue or the second issue michael chapman asked this court to reverse his conviction to remand the case for a new trial and if we need to reserve any time in rebuttal we we ask that of the court thank you thank you mr zimmerman may it please the court good afternoon your honors council my name is john zimmerman here on behalf of the fourth district appellate prosecutor's office with the state i'll just quickly go over the second issue that we discussed while it's fresh in our minds regarding the the prejudice justice bridges i agree with you there is no prejudice in fact the issue that defendant argues on appeal was objected to immediately prior to christian's testimony the defense objected to him testifying regarding these unmemorialized threats however the state informed the trial court that those statements came from defendant's mouth on the jails call the jail calls and the state even offered to introduce those jail calls into evidence but ultimately chose not to in order to avoid a trial within a trial so it had christian testify as to them and based on his investigation of this case being with it for over several years he had personal knowledge of these threats and there was no error regarding this moreover it's the trial court's discretion to allow whether the uh an individual can sit in the courtroom at the the table whether they're testifying or not this is rule 615 and numerous opinions have also held that police officers may sit at counsel's table during the proceedings as a result defendant cannot serve prejudice there is no abuse of discretion so the state would request this court affirm the trial court's judgment regarding the first issue the state and its brief relies upon people versus golden which essentially states that there is no need to make good faith efforts to secure a witness's testimony if the statement is admitted through the forfeiture by wrongdoing doctrine the state cited this reasoning in golden in length on this court to follow that reasoning and notably the golden course discussed how our supreme court has treated the forfeiture by wrongdoing doctrine by stating there are only two criteria which is wrongdoing on part of defendant and that that wrongdoing was committed with the intent to and did render the witness unavailable that's what occurred in this case and the reasoning behind this is because the doctrine is rooted in the idea that no person is permitted to profit by their own wrongdoing here defendant does not even argue that he did not engage in wrongdoing his statement of facts admit that he did and the record further supports this that the jail calls now defendants let me ask you since you mentioned uh golden here uh you have essentially argued that uh the golden uh was correctly decided and we should follow its reasoning um and i i guess my thing is but how do you show that a witness is unavailable without showing the efforts that were to procure that witness for the trial yes your honor i believe in golden they held that within the requirement that it was subsumed i think is the word they used i think what they didn't they hold that when you're dealing with forfeiture by wrongdoing the issue of the witness uh what efforts are important that's what they are and my my question to you is how can that be you know if it requires reasonable effort how how can we have that as as the uh reasons and law that we should follow well your honor in in peterson which was cited by golden that peterson is our supreme court they have also stated that there are only two requirements by forfeiture by wrongdoing which is that the defendant engaged in the wrongdoing and that the wrongdoing was intended to and did procure the unavailability of the witness so i think what if what if the witness's mother or wife just had a stroke or a heart attack and they were in they fully intended to appear despite any threats and the state had the phone numbers but they didn't try to contact him because he just didn't show up but he didn't show up for a reason that had absolutely nothing to do with the wrongdoing yes your honor the court do if it discovered i mean that came out in the evidence later somehow yes your honor in that scenario i don't think the state would be able to prove that the defendant was the one who engaged in the wrongdoing am i following your question no no i'm saying the same there's the same evidence of wrongdoing but the witness is not influenced by that wrongdoing instead the in it the witness is absent from the trial not before trial but absent from the trial for a reason that has nothing to do with the wrongdoing i understand your honor i think the argument would be well it would kind of like in this case how there was we thought there was going to be a trial and then there was i believe a six-month gap or something for certain reasons they held another hearing regarding the location of the witness so regarding your hypothetical i'm not exactly sure how to answer that but well i i suppose the judge can ask what what efforts have you made today to find that witness and if the state just shrugged there'd be a problem even if you had strong evidence of wrongdoing i think bridges was trying to say there still has to be i don't mean to speak for him there's some interplay between okay the state's the state's efforts and the wrongdoing even though the broader statement in golden and u.s supreme court makes it sound like well once you got the wrongdoing it doesn't matter yes your honor i understand your your point now and i to be honest i haven't thoroughly analyzed that because in this case as we're all aware there was the analysis of the good faith efforts yeah so so moving on to that if your honors would like further elaboration on those good faith efforts which was the focus of defendant's argument the state's position is that those were clearly made as justice bridges stated what else could the state have done they traveled this the detective traveled outside of his jurisdiction to a different state to try to locate this defendant if you don't have a valid address for an individual how are you supposed to serve them they went to these various addresses to try determine whether he lived there but they could not determine that so the state is uncertain what else further could have been done in this case counsel was there any way for the state to get a warrant as i think mr bendick suggested in his argument yes your honor similar to the other two witnesses who were a warrant was sent out for them but that was because they failed to comply with the initial subpoena so to get a body attachment as justice bridges pointed out you have to violate a court order first and be properly served and have notice of that before you can well there was no service of mr collins correct correct okay so my question is i without service could the state have obtained a ward you seem to indicate yes but i'm not sure all that no your honor i'm meant to indicate now okay maybe i misunderstood yes i apologize let me ask you a question about the efforts the defendant's mother is involved in this and somehow would that be correct based on the phone calls and messages and so forth based on my recollection that is correct your honor okay and they knew where the mother lived and they suspected they meaning the state or the police officer suspected that there might be some contact between them why not issue a subpoena to the defendant at the mother's address your honor are you meaning collins or the defendant collins i mean i'm sorry okay collins mother that's yeah i answer that your honor based on the record i uh well the record shows that they think that she was trying to acquire information or am i garbling that that does seem to ring the bell your honor i'll back away because i may be misapprehending what i what i thought yes but regardless besides the whole subpoena issue if you review the record there's over 20 witnesses in this trial and this single detective did all this work just to locate one witness let's see he traveled out of his jurisdiction on several occasions he went to various different addresses he called people he kept detailed records regarding his attempts he remembered the follow-up to justice turner's question because he asked you about specifically about the warrant the defendant has argued in their brief that he should have been put into the leads the law enforcement information database that he should have been put on the fbi's list could that have actually happened in this case yes your honor based on detective christian's testimony it's possible and from my experience with leads i do know that it is very specific as to whether you can even search for an individual you have to have i don't even know if it's probable cause but you can't just search for people post people's names up there just because you'd like to you have to have a warrant which as i just previously stated there was no warrant and even detective christian's testimony shows that based on what occurred in this case they could have posted that on leads or the fbi so he's not a missing person he has no warrant for his arrest so he can't be put in leads is that what you're saying yes your honor so a review of the record the state argues that we went above and beyond attempting to locate collins it was clear he did not want to be found this is also evident within the record he didn't want to be located i think the one time he met up with detective christian he told him that he did not want to be involved in the case and so as a result assuming this court does not follow the state's first argument alternatively we would argue that good faith efforts were made no error occurred when the trial court found they were made and the state would request this court to affirm the trial court what's our standard of um the evidentiary determination is against the manifest weight of the evidence i believe that is correct and then alternatively is it am i correct then assuming we don't follow golden the state had to show by a preponderance of the evidence that um they had made good faith efforts to procure the witness and trial courts found that and then on review standard review for us is manifest weight did i state that correctly i believe that is correct your honor okay and before you leave mr zerman i don't know if you're close to being done i want to apologize i was conflating uh collins's mother with some of the defendant's relatives but nonetheless the question was they knew where collins mother lived and they talked to her uh that wouldn't have been required much effort to use that address initial subpoena in the thought that perhaps this young man would be back in touch with his mother or that he might stay with her or live with her for a period of time yes your honor i believe based on the testimony and i'd have to reread all of detective christian's testimony but it seemed to me that he did all that he could do within his legal limits to attempt to find where collins lived he went to these various locations sometimes i didn't answer i understand i don't need a review of what he did do yes your honor i was just commenting that a subpoena could have been issued to the address of his mother and the only answer of that is i don't know why that wasn't done i don't know if it would have been helpful i i don't know how else you can answer that yes your honor and i'm not sure if it's this case or another case i had but i believe there is some type of relationship between collins and defendant or something so i'm not exactly sure if that's relevant but that's just something that i quickly thought of and then lastly my last argument which would be relevant to both points that i've argued today would be that assuming any error did occur any error was harmless beyond a reasonable doubt i know defendant takes issue with a brief paragraph of this argument however i thought it was nicely summarized the six-day trial there was evidence that placed defendant at the scene of the crime that he was involved in the shooting text messages were presented that proved defendant attempted to rob the victim and even if you take out collins's testimony there was another witness who testified in detail that defendant admitted to committing the crime so and the state's view the evidence is overwhelming indisputable and the excluded evidence would have been cumulative regardless so the any alleged error was harmless and for all these reasons if there's no further questions the state requests this court affirm the trial court's judgment and the state will rest thank you counsel mr rebuttal you're muted thank you your honor um briefly to address i think we first ought to answer that business about leads yes so in order to him to be put into leads yes a warrant would have been had to have been issued and that kind of demonstrates why here detective christian's not meet good faith because we know that there's a recent address specifically that green street address which the trial court relied upon in finding that there was good faith the subpoena could have been issued there as you highlighted um your honor as to i i believe the the family member was um demetria chapman um it was discussed about that was the relative of collins um i don't know if there's another collins's mother or someone else in the record i think it was demetria chapman your honor um but we have a valid address that this subpoena could have went out to and we know the state knows how to issue the subpoena as they did it for anderson's the anderson sisters so in order for good faith to have occurred here what what should have happened is that a subpoena should have been issued to one of those most recent addresses the champagne one on green um there's one in kendall county that was used in july of 2020 then when the subpoena goes out via mail it's properly served there at the last known address he doesn't respond to it a body attachment can issue at that point and then it can be put into leads as detective christian admitted that it could be put into a leads in the fbi nationwide okay counsel let me stop you there subpoena is issued you said it should be mailed uh and uh once it's mailed you seem to jump to the without any service of us jump to the body attachment or the warrant i'm not following that the case law in our brief it shows that as well as soon as it would be mailed out and sent we know he's using these addresses as of july 2020 or in the last year here case law people v allen affirms the uh trial court's denial of a continuance the reviewing court faults the defendant's attorney for not submitting the subpoena by mail this is all in our reply brief your honor and it's in fact on the subpoena in our record from champagne county that mail us mail is an option to use so if if in fact they can't get the sheriff out there or detective christian or whoever to put it into someone's hand it can still be effectuated either by mail or even publication our supreme court rules allow that as well as long as it's the steps are taken now what the state can't do here is not take the steps the steps need to be taken in order for good faith to occur and here those those steps were truncated and even if there were a few steps they were not qual there were not quantity or quality steps just like um in people be paying um your honor and so from this record here if we were to assume that you're correct about simply mailing the subpoena and then morphing to a body attachment the state would have had to mail the subpoena to three addresses at least three addresses is that correct your honor i'm i don't even think they would need to have served it to three let's go with the most recent one i think july 2020 but why why would we stop with just the most recent one when he wasn't there what would make you you're assuming that the most recent one is the one where he actually stayed well i'm yes based on the testimony from the hearing your honor i'm assuming that the most recent one we had is that he stayed there he did use that address we know that most recent one is in iowa no no um my understanding where did this where did the detective christiansen talk to him at he talked to him in iowa but i believe that was before july 2020 your honor um in july 2020 was the kendall county address that he testified to um so let's do whatever address was the most recent that's where it should have been sent to um of course the state could have sent it to all three and that would even further augment i know your time is up the mere fact that he was at these different locations from this record we do not know where he stayed he visited a number of places you're assuming you're making a leap that all of these place every place he went became a residence for him um i'm john aren't you assuming that no there's no testimony that he lived there uh i will pull up the regarding his the detective's testimony as to the kendall county address um my understanding this this transcript is that that he used that as a residence but i again i know i'm past my time your honor i don't want to keep us here either but based on the we think the state has not demonstrated good faith that was against the manifest weight of the evidence the state has not demonstrated harmless error beyond a reasonable doubt here and we ask for a new trial either on the first issue or the second issue your honor thank you counsel thank you thank you gentlemen for your arguments and we'll take matter under advisement