Petition for Writ of Certiorari — Armani L. Moore, Petitioner v. Illinois

No.

IN THE

SUPREME COURT OF THE UNITED STATES

ARMANI MOORE, Petitioner,

-vsPEOPLE OF THE STATE OF ILLINOIS, Respondent.

On Petition For Writ Of Certiorari

To The Appellate Court Of Illinois

PETITION FOR WRIT OF CERTIORARI

JAMES E. CHADD

State Appellate Defender

JEFFREY BRUCE KIRKHAM

Counsel of Record

Assistant Appellate Defender

Office of the State Appellate Defender

Second Judicial District

One Douglas Avenue, Second Floor

Elgin, IL 60120

(847) 695-8822

2nddistrict.eserve@osad.state.il.us

COUNSEL FOR PETITIONER

Of Counsel:

ELLIOTT A. BORCHARDT

Assistant Appellate Defender

QUESTION PRESENTED FOR REVIEW

Whether a declarant is "unavailable to testify" for purposes of the Sixth

Amendment, and as that phrase is used in Crawford v. Washington, 541 U.S. 36, 54

(2004), when she is physically present at trial, but states that she does not remember

either the events underlying her out-of-court statements or making the statements

themselves.

i

PARTIES TO THE PROCEEDING

The caption of this case contains the names of all the parties to the proceeding

in the court whose judgment is sought to be reviewed.

RELATED PROCEEDINGS

•

People u. Armani Moore, No. 2021-CM-318, Circuit Court of the Twenty-Third

Judicial Circuit, Kendall County, Illinois. Final judgment entered July 28, 2022.

•

People v. Moore, No. 2-22-0289, Appellate Court of Illinois, Second District.

Opinion and order affirming the judgment of the circuit court entered August

16, 2023.

•

People v. Moore, No. 130008, Supreme Court of Illinois. Order denying leave to

appeal entered November 29, 2023.

ii

TABLE OF CONTENTS

Question Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Parties to the Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Related Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Opinion Below ......................... ..................... . ........ 1

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Constitutional Provisions Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Reasons for Granting Certiorari . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I.

The position of the Appellate Court of Illinois and courts in other

jurisdictions in allowing admission of a declarant's out-of-court

statements concerning the charged incident when she appears in court

but does not recall the events the defendant is charged for or making the

out-of-court statements is against the spirit of Crawford. . . . . . . . . . 11

II.

At least in part because of footnote nine in Crawford, courts across the

United States are in conflict regarding whether a declarant's out-of-court

statements are admissible under the Confrontation Clause when she

recalls neither making the statements nor the events underlying them,

leading to frequent litigation and appeals, thus demonstrating the

important need for this Court to address this question. . . . . . . . . . . . 19

A.

A conflict among courts exists as to whether the admission of a

declarant's out-of-court statements violates the Confrontation

Clause when she fails to recall making the statements and the

events the statements describe . . . . . . . . . . . . . . . . . . . . . . . . . 2Q

B.

Footnote nine in Crawford is contradictory with regard to whether

a witness's mere presence at trial satisfies the availability

requirement.. ........ ........ . .. .................... 22

C.

This question repeatedly confronts reviewing courts across the

country and has been the basis of numerous petitions for certiorari,

indicating this question's importance and a national need for this

Court to address the question .. . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

Conclusion . ..................... . ........................ .......... 26

INDEX TO APPENDIX

Appendix A: Published opinion of the Appellate Court of Illinois, affirming Armani

Moore's conviction. People, v. Moore, 2023 IL App (2d) 220289.

Appendix B: Order of the Illinois Supreme Court, denying Armani Moore's petition

for leave to appeal. People v. Moore, 223 N.E.3d 650 (Table), (November 29, 2023).

lv

TABLE OF AUTHORITIES

Cases:

Page

Blakeney v. United States, 562 U.S. 897 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Bullcoming v. New Mexico, 564 U.S. 647 (2011}. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

California u. Green, 399 U.S. 149 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14-15

Cookson v. Schwartz, 556 F.3d 647 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . 21, 24

Crawford v. Washington, 541 U.S. 36 (2004) . . . . . . . . . . . . . . . . . 8, 10, 14-16, 18-24

Davis v. Alaska, 415 U:S. 308 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17, 19, 24

Davis v. Washington, 547 U.S. 813 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Delaware U. Fensterer, 474 U.S. 15 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Douglas v. Alabama, 380 U.S. 415 (1965). . . . . . . . . . . . . . . . . . . . . . . . 11-12, 15, 17

Goforth v. State, 70 So.3d 174 (Miss. 2011) . . . . . . . . . . . . . . . . . . . 16, 18, 20-21, 23

Maryland v. Craig, 497 U.S. 836 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Mattox v. United States, 156 U.S. 237 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Melendez-Diaz v. ll~fassachusetts, 557 U.S. 305 (2009) . . . . . . . . . . . . . . . . . . . . . . . 10

Mercer v. United States, 864 A.2d 110 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . 18

Michigan v. Bryant, 562 U.S. 344 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Nelson v. O'Neil, 402 U.S. 622 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ohio v. Clark, 576 U.S. 237 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ohio v. Roberts, 448 U.S. 56 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People u. Burnett, 2015 IL App (lst) 133610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

People v. Moore, 2023 IL App (2d) 220289 . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8-9, 14

People u. Moore, 223 N.E.3d 650 (Table), (November 29, 2023). . . . . . . . . . . . . . . 1, 9

v

Pointer v. Texas, 380 U.S. 400 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State U. Fields, 201 P.3d 586 (Haw. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. Gorman, 854 A.2d 1164 (Me. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. Holliday, 745 N.VV.2d 556 (Minn. 2008) . . . . . . . . . . . . . . . . . . . . . . . . 19, 23

State v. Legere, 958 A.2d 969 (N.H. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

State v. McManus, 990 A.2d 1229 (R.I. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

State v. ~Vyhammer, 932 A.2d 33 (N.J. Super. Ct. App. Div. 2007) . . . . . . . . . . . . . 21

State v. Nyhammer, 963 A.2d 316 (N.J. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

State v. Pierre, 890 A.2d 474 (Conn. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. Price, 146 P.3d 1183 (Wash. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. White, 243 So.3d 12 (La. Ct. App. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tapia v. New York, 140 S.Ct. 643 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Zlnited States v. Ausby, 436 F,Supp.3d 134 (D.D.C. 2019) . . . . . . . . . . . . . . . . . . . . 22

United States v. Owens, 484 U.S. 554 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

White i~. Louisiana, 140 S.Ct. 647 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Williams v. Illinois, 567 U.S. 50 (2012}. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Woodall v. State, 336 S.V~~.3d 634 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . 19

Yanez v. Minnesota, 562 F.3d 958 (8th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Constitutional and Statutory Provisions:

28 U.S.C.§1257(a)................ ..... . .... .................... ..... . 2

720 ILLS 5/12-3.2(a)(2) (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15

725 ILLS 5/115-10.2a (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S.Const.amend.V.. . ................. .. . . .:. . . ... ................ . 18

vi

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10-11

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10

Other Authorities:

5 J Wigmore, Evidence § 1395, p. 123 (3d ed. 1940). . . . . . . . . . . . . . . . . . . . . . . . . 17

Christopher B. Mueller, Cross-Examination Earlier or Later: When is it Enough to

Satisfy Crawford?, 19 REGENT U. L. REv. 319 (2007) . . . . . . . . . . . . . . . . . . 15, 17-18

Christopher B. Mueller &Laird C. Kirkpatrick, 4 Federal Evidence § 8:37 (4th ed.

2023)... ... .................................................. . . . ... 15

Petition for Writ of Certiorari, Blakeney v. United States, 562 U.S. 897 (2010) (No. 1.0215)2010 WL 3236719 ............................ ............... . ... 24

Petition for Writ of Certiorari, Tapia v. New York, 140 S.Ct. 643 (2019) (No. 19-159)

2019 WL 3545864........................... . ... . .................... 24

Petition for Writ of Certiorari, White v. Louisiana, 140 S.Ct. 647 (2019) (No. 18-8862)

.... . ........................................................ . ..... 25

Richard D. Friedman, Failure to Answer Questions an Cross, THE CONFRONTATION

BLOC (May 13, 2008, 10:34 AM), hops://confrontationright.blogspot.com/2008/05

/failure-to-answer-questions-on-cross.html (last visited January 25, 2024) . . . . . . 16

Richard D. Friedman, Prior Statements of a Witness: A Nettlesome Corner of the

Hearsay Thicket, 1995 SUP. CT. REV. 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18

Roger V~r. Kirst, Does Crawford Provide a Stable Foundation for Confrontation

.Doctrine?, 71 BROOK. L. REV. 35 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vii

No.

IN THE

SUPREME COURT OF THE UNITED STATES

ARMANI MOORE, Petitioner,

-vs-

PEOPLE OF THE STATE OF ILLINOIS, Respondent.

On Petition For Writ Of Certiorari

To The Appellate Court Of Illinois

The petitioner, Armani Moore, respectfully prays that a writ of certiorari

issue to review the judgment below.

OPINION BELOW

The decision of the Illinois Appellate Court, Second District, affirming Moore's

conviction for domestic battery, is published and available at People v. Moore, 2023 IL

App (2d) 22Q289, _ N.E.3d

. (Pet. App. 1a-23a). The Illinois Supreme Court order

denying Moore's petition for leave to appeal is available at People u. Nfoore, 223 N.E.3d

650 (Table), (November 29, 2023}. (Pet. App. 24a).

-1-

JURISDICTION

On August 16, 2022, the Illinois Appellate Court, Second District, issued a

decision in this case. (Pet. App. 1a-23a). No petition for rehearing was filed. The Illinois

Supreme Court denied a timely filed petition for leave to appeal on November 29, 2023.

(Pet. App. 24a). This petition is being filed within 90 days of that ruling, pursuant to

Rule 13.1. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1257(a}

(2018).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides, in relevant part, "In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against

him . . .and to have the Assistance of Counsel for his defence." U.S. Const. amend. VI.

The Fourteenth Amendment states, in pertinent part, "No State shall make or

enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws." U.S. Const. amend. XIV, § 1.

-2-

STATEMENT OF THE CASE

On August 7, 2021, at approximately 4:30 pm, Deputies Ignas Rolskis and Zach

Tongate from the Kendall County Sheriff's Office in Illinois responded to a report of a

domestic battery at 2300 Light Road in Oswego, Illinois. (R.71-72, 94-95). When he

arrived, Rolskis spoke with Alexis May, who told him that she was in a verbal

argument with Armani Moore because Alexis moved Moore's phone charger.., (R.74-75).

Moore was upset and started yelling, and he proceeded to push over Alexis's shoe bin,

take Alexis's phone and car keys, and leave the apartment. (R.77-78, 86-87, 90;

People's Ex. No. 3 6:08-6:10). Alexis remained in the residence and did not want to

leave without her phone. (R.87; People's Ex. Na. 3 6:1Q-6:20). Moore returned to the

residence, and the verbal argument continued until Moore verbally forced Alexis to

leave. (R.90; People's Ex. No. 3 6:20-6:30). Moore and Alexis pushed each other as she

left the apartment. (R.78, 90). When Rolskis specifically asked, Alexis indicated

nothing physical happened outside of this pushing. (R.90). Alexis walked to a gas

station and spoke to a woman who allowed Alexis to use her phone and then provided

Alexis a ride to Alexis's mother's house. (R.77).

Alexis's mother, Rhonda May, drove her back to the apartment, and Rolskis

spoke with Rhonda during his investigation. (R.78, 117). After Rolskis spoke to

Rhonda, Rhonda yelled and screamed at Alexis. (R.92). Rhonda said to Alexis, "You

can't tell me one thing and then tell him another story." (People's Ex. No. 3 15:0815:12). Rhonda asked Alexis, "Did he or did he not put hands on you? You have to say

this to them'" (People's Ex. No. 3 15:12-15:17). Rhonda continued to yell and scream

at Alexis about the reason the police were called and the need to be honest. (People's

-3-

Ex. No. 3 15:15-15:55). In the course of doing so, Rhonda stated, "He's going to do it

again . . .he's got a hot head. This is what you're gonna deal with every time he gets

mad?" (People's Ex. No. 3 15:23-32). Rhonda told Alexis, "He's a big boy, he could hurt

you." (People's Ex. No. 3 15:46-15:48).

Rolskis came over and told Alexis, "~~e have paperwork and we have ways that

you can prevent this from happening in the future. . : . I can give you paperwork and

give you resources to give you help. How long do you wanna go like this?" (People's Ex.

Na. 3 15:55-16:17). Rhonda mentioned Alexis potentially filing for an order of

protection, and Rolskis indicated he had paperwork for that. (People's Ex. No. 3 16:1816:25). Rolskis suggested that Alexis get her stuff and leave for the night, but Alexis

said she was not leaving. (People's Ex. No.316:23-16:30). Rolskis replied to Alexis that

she needs to understand "if he doesn't want to leave, I can't force him to leave, and

we're gonna be at the same thing, and what's to say something else doesn't happen

where it escalates to something?" (People's Ex. No. 3 16:30-16:43). Alexis replied, "The

purple mark on my shoulder, the egg on my chin, the cut on my hand, what do I need

to show you to get him out of my house today?" (People's Ex. No. 3 16:43-16:50). Alexis

then indicated the altercation was more physical than what she stated earlier, saying

Moore battered her. (People's Ex. No. 3 16:50-17:OQ).

After Alexis told Rolskis she had been battered, Rhonda told Alexis that "she

can't be afraid" and she was scaling her brother and causing him to cry. (People's Ex.

Nn. 3 17:05-17:21). Meanwhile, Rhonda's boyfriend, who was also on scene, told Alexis

it is the only way it is going to help, she will end up getting beat up one day and end

up on a Lifetime movie, and she has to "take care of this shit." (R.78; People's Ex. No.

3 17:Q5-17:21). Rolskis asked Alexis if she wanted to start from the beginning, and

Alexis stated, "Everything is true except what I told you; it got a lot more physical."

(People's Ex. No. 3 17:25-17:33). Rolskis said he wanted Alexis to explain how.

(People's Ex. No. 3 17:33-17:37). Alexis told Rolskis that Moore grabbed her, threw

objects at her, and hit her with a phone charger cord. (R.79, 87). Moore pinned Alexis

on the couch and held her on her shoulder. (R.79). Alexis thought Moore caused a

bruise on the back of her shoulder. (R.80). Alexis also said she had a bruise on her

hand, but she did not know what caused the bruise. (People's Ex. Na. 3 18:20-18:25).

Moore arrived after Rolskis spoke to Alexis. (R.80-81, 97-98; People's Ex. No. 3 18:4019:50).

Moore was eventually arrested. (R.88). When Rolskis left the scene with Moore,

Tongate stayed back to obtain a written statement from Alexis and take photos of her.

(R.88). Tongate took photos of Alexis, went inside the apartment with Alexis, Rhonda,

and Rhonda's boyfriend, and gave Alexis a written statement to complete. (R.102-03,

110, 120). Tongate asked Alexis to be specific about what happened before she wrote

the statement. (R.103). Alexis completed the written statement and handed it back to

Tongate. (R.104). Rhonda was present as Alexis completed the written statement.

(R.111, 120). Alexis wrote in the written statement:

I came home from work. He was already upset from playing the

video game. He asked where his charger was. It was in our

bedroom. He got upset because I moved his charger from the living

room to our bedroom without telling him. He started yelling and

calling me names. I stayed quiet and he kept going on and on and

on he took my phone wouldn't give it back eventually he came bacl~

in the house and told me get my stuff and leave. He kept my keys

my phone. My car and my purse. I said I wasn't going to leave and

he grabbed me threw objects at me and forced me to leave while

keeping my phone, keys, etc. He held me down on the couch

-5-

forcefully. After I left I walked to the gas station and got a ride

from the female worker. She then took me to my moms. He had

pushed and shoved me into the wall out of anger.

(E.26). On January 12, 2022, Alexis went to the Kendall County Sheriff's Office to

recant her statement because she did not remember what happened on August 7.

(R.59-61, 67-68). Alexis wrote a new statement. (R.60, 67).

Moore was charged with domestic battery making physical contact of an

insulting or provoking nature under 72Q ILCS 5/12-3.2(a)(2) (2021). (C.5). The charging

instrument alleged Moore "struck Alexis T May, a household member, with his hands

causing redness and bruising." (C.5)

The matter proceeded to bench trial in April 2022. (R.32). A few minutes before

trial, the prosecutor told the court she did not know what Alexis was going to testify

to. (R.38).

Alexis testified that she was in a relationship with Moore and lived with him on

August 7. (R.47-48). She remembered coming home from work between 3:00 and 4:00

pm, but she did not remember any details about the incident or making statements

about it, including on cross-examination. (R.48-56, 63-66}. She also did not remember

if she went to the gas station, if she called Rhonda with a woman's phone, or if the

woman gave her a ride to Rhonda's residence. (R.51-52). Additionally, during crossexamination, Alexis failed to recall the circumstances under which she made the out-ofcourt statements. (R.63-66).

The prosecutor showed Alexis People's Exhibits 2A, 2B, and 2C. (R.58). Alexis

recognized these exhibits as photos of her, but she did not know if those photos

accurately depicted how she looked on August 7. (R.58). She added, "I don't know how

they would have gotten there." (R.58). Alexis identified People's Exhibits 2B and 2C to

be photos of her left shoulder. (R.59). ~rhen asked if People's Exhibits 2B and 2C

accurately reflected how her left shoulder looked on 4ugust 7, Alexis testified, "[I]f

that's what the picture shows, then yes." (R.59).

The prosecutor also showed Alexis People's Exhibit 1. (R.56). Alexis did not

recognize the document but acknowledged the signature at the bottom looked like hers

and could be hers. (R.56-57). She also acknowledged she could have written the

document, though the handwriting did not look like hers. (R.57-58).

Alexis was unsure of why exactly she did not remember what happened on

August 7, but she testified she "had a lot of people in my ear" and surmised that she

might not have remembered because of the passage of time or because of an anesthetic

she received when she underwent surgery. (R.61).

Rolskis's testimony was consistent with his body-worn camera footage, and he

also testified about the statements Alexis made to him. (R.71-93; People's Ex. No. 3).

When the prosecutor asked him if Alexis told him that Moore was mad and started

yelling, defense counsel objected on hearsay grounds. {R.75). The State argued that the

statement was admissible pursuant to a hearsay exception found under Illinois law in

725 ILCS 5/115-10.2a (2021). (R.75-76). The court overruled the objection and allowed

the statement to be admitted. (R.76).

Tongate testified he observed Alexis to have a red mark or bruise on her

shoulder and a lump on her shin. (R.102). When shown People's Exhibit 1, he identified

it as the written statement Alexis completed on August 7. (R.105). When the State

soubht to have the written statement admitted, defense counsel objected on hearsay

-7-

grounds. (R.105-06). The State argued that the same aforementioned hearsay exception

applied. (R.106). The trial court overruled the objection, and the statement was

admitted. (R.106).

Rhonda testified Alexis called her and said Moore put his hands nn her. (R.11516). Alexis arrived at Rhonda's house scared, crying, and upset, and she had red marks

on her neck and shoulder. (R.115-16). They drove back to Alexis's apartment, and on

the way, Rhonda called 911 so Alexis could get her belongings. (R.117-18). The drive

from Rhonda's to Alexis's takes about fifteen to twenty minutes. (R.117). Upon their

arrival, Rolskis was waiting in his squad car. (R.118). Rhonda admitted that she was

not happy with what Alexis told R,olskis, so she yelled at Alexis to tell the truth.

(R.122-23). She watched Alexis write her statement. (R.120-21).

The trial court found Moore guilty of domestic battery. (R.155). In doing so, it

explicitly relied on Alexis's out-of-court statements. (R.153-55).

On direct appeal to the Appellate Court of Illinois, Moore argued, inter alia, that

the admission ofAlexis's out-of-court statements violated the Confrontation Clause as

interpreted in Crawford v. Washington, 541 U.S. 36 (2004), because Alexis was

unavailable to be cross-examined concerning the statements and events she had no

recollection of, and counsel was ineffective in failing to object to the statements'

admission on such grounds. People v. Moore, 2023 IL App (2d) 220289, ¶¶ 1, 20-21, 23;

(Def. Br. 12-14, 19); (De£ Reply Br. 5-7). Noting that the parties agreed that both

Alexis's oral statements to Rolskis and her written statement were testimonial, the

Appellate Court of Illinois found those statements admissible undei the Confrontation

Clause. Moore, 2023 IL App 92d) 220289, ¶¶ 26-32. Relying on People v. Burnett, 2015

IL App (1st) 133610, the court held that, because Alexis answered preliminary

questions during her testimony, she was available for cross-examination. Moore, 2023

IL App (2d) 220289, ~¶ 27-31. Specifically, the court noted that Alexis testified that she

was in a relationship with Moore, she lived in an apartment with Moore, Moore was

home when she came home from work on August 7, the photo exhibits showed her and

how her shoulder looked on August 7, she could have written People's Exhibit 1, and

she recanted her written statement. Id. at ¶¶ 30-31. The appellate court affirmed

Moare's conviction. Id. at ¶ 48.

Moore filed a petition for discretionary review with the Illinois Supreme Court

in which he contended the admission of Alexis's statements violated the Confrontation

Clause under Crawford. {Petition for Leave to Appeal at 2, 11-14.). In doing so, Moore

argued that Alexis's statements were inadmissible under Crawford because she was

an unavailable witness as a result of her failed recollection of both the events that were

the basis for the charge and in making her statements, with Mooie having no previous

opportunity to cross-examine her. (Petition for Leave to Appeal at 12-13). Moore also

contended that Alexis's out-af-court statements were ex pane examinations used

against Moore, which Crawford unequivocally disavowed. (Petition for Leave to Appeal

at 13-14). The Illinois Supreme Court denied Moore's petition. People u. Moore, 223

N.E.3d 650 (Table), (November 29, 2023).

This petition follows.

REASONS FOR GRANTING CERTIORARI

In Crawford v. Washington, 541 U.S. 36 (2004), this Court held that, under the

Confrontation Clause found in the Sixth Amendment of the United States Constitution,

which applies to the States through the Fourteenth Amendment, testimonial out-ofcourt statements are not admissible if the witness is unavailable to testify and the

defendant did not have a prior opportunity to cross-examine the witness. Pointer v.

Texas, 380 U.S. 400, 403 (1965); Crawford, 541U.S. at 68; see also Williams v. Illinois,

567 U.S. 5Q, 76 (2012) ("[T]he Confrontation Clause, as interpreted in C~~awfof~d, does

not bar the admission of irrelevant evidence, only testimonial statements by declarants

who are not subject tocross-examination."); U.S. Const. amends. VI, XIV. On numerous

occasions, this Court has addressed the "testimonial" aspect of this axiomatic principle

of the Confrontation Clause. See gercera~lly Williams, 567 U.S. 50; Ohio v. Clark, 576

U.S. 237 (201 }; Bullcoming u. New ll~exico, 564 U.S. 647 (2011); Michigan v. Bryant,

562 U.S. 344 (2011); Melendez-Diaz u. Massachusetts, 557 U.S. 3Q5 (20Q9); Davis u.

Washington, 547 U.S. 813 (2006).

However, subsequent to Crawford, this Court has never addressed what it

means to be "unavailable." The time has come for this Court to do so. Allowing out-ofcourt statements of declarants who, while appealing in court, recall neither the events

underlying the charges nor making statements regarding the events—as the appellate

court here and courts in other jurisdictions endorse—is contrary to the spirit of

Crawford. Additionally, different jurisdictions are in conflict regarding whether the

admission of a witness's out-of-court statements violates the Confrontation Clause

under such circumstances. Further, Crawford provides contradictory guidance on what

-10-

it means to be "available" for cross-examination. Finally, the question presented herein

is one that repeatedly confronts lower courts and frequently serves as the basis for

petitions for writ of certiorari before this Court, demonstrating the magnitude of its

national importance and the need for this Court to ultimately address the question.

This Court should thus grant this petition.

I.

The position of the Appellate Court of Illinois and courts in other

jurisdictions in allowing admission of a declarant's out-of-court

statements concerning the charged incident when she appears in

court but does not recall the events the defendant is charged for

or making the out-of-court statements is against the spirit of

Crawford.

The Confrontation Clause, which guarantees a defendant the right "to be

confronted with the witnesses against him," is meant to protect the criminal

defendant's right to cross-examine witnesses. Douglas v. Alabama, 380 U.S. 415, 418

(1965); U.S. Const. amend. VI. Prior to Crawford, Ohio v. Roberts, 448 U.S. 56 (1980),

governed issues concerning the Confrontation Clause and out-of-court statements.

Under the Roberts framework, for an out-of-court statement to be admissible, the

declarant must have been present at trial or, if unavailable, the statement sought to

be introduced had to fall within a recognized hearsay exception or show "particularized

guarantees of trustworthiness." Roberts, 448 U.S. at 65-66.

Prior to Roberts, in Douglas, this -Court recognized that the purpose of the

Confrontation Clause was "to prevent depositions or ex pane affidavits * ~ ~ being used

against the prisoner in lieu of a personal examination and cross-examination of the

witness," during which the defendant is provided the opportunity "of testing the

recollection and sifting the conscience of the witness." Douglas, 380 U.S. at 418-19

(quotingMattox U. United States, 156 U.S. 237, 242-43 (1895)). There, this Court found

-11-

a violation of the Confrontation Clause when the prosecutor questioned a testifying codefendant by reading his confession to him at the defendant's trial after the codefendant claimed his right against self-incrimination while testifying. Id. at 416-17.

The Confrontation Clause was violated, inter alia, because the co-defendant "could not

be cross-examined on a statement imputed to but not admitted by him." Id. at 419.

This Court concluded that "effective confrontation of [the co-defendant] was possible

only if [he] affirmed the statement as his." Id. at 42Q.

After Douglas, this Court had occasion to address specific instances where a

witness did not directly affirm the validity of a prior statement. First, in California v.

Green, this Court addressed an instance of a witness who gave trial testimony

inconsistent with his prior, out-of-court statements and held there is no violation under

the Confrontation Clause if an out-of-court statement is admitted and the declarant is

present to testify "subject to full and effective cross-examination." California v. Green,

399 U.S. 149, 151-52, 158 (1970). In reaching this holding, this Caurt framed its

inquiry as determining whether the trier of fact has "a satisfactory basis for evaluating

the truth of the prior statement" and noted that, if the witness were to testify

inconsistently at trial with his prior statement (thus not affirming it), that alone

accomplishes the task of successful contemporaneous cross-examination, as the witness

appears incredible. Green, 399 U.S. at 159, 161.

In Nelson v. O'Neil, this Court characterized the issue as "whether crossexamination can be full and effective where the declarant is present at the trial, takes

the witness stand, testifies fully as to his activities during the period described in his

alleged out-of-court statement, but denies that he made the statement and claims that

-12-

its substance is false." Nelson v. O'Neil, 402 U.S. 622, 627 (1971). This Court

distinguished Douglas based vn the fact that "there was in fact no question of the effect

of an affirmance or denial of the incriminating statement, since the witness or

codefendant was in each case totally unavailable at the trial for any kind of crossexamination." Nelson, 402 U.S. at 627-28. In finding no Confrontation Clause violation,

this Court reasoned that the co-defendant not reaffirming the statement benefitted the

defendant more than any possible cross-examination regarding an affirmed statement.

Id. at 629-30.

In Delaware v. Fensterer, this Court noted that the Confrontation Clause merely

guarantees an opportunity for effective cross-examination and not cross-examination

"that is effective in whatever way, and to whatever extent, the defense might wish."

Delaware v. Fensterer~, 474 U.S. 15, 20 {1985). This Court then held that a witness's

failure to remember the basis for opinion testimony does not violate the Clause, as the

Clause "includes no guarantee that every witness called by the prosecution will refrain

from giving testimony that is marred by forgetfulness, confusion, or evasion." Fensterer,

474 U.S. at 21-22.

Finally, in United States vs. Owens, this Court reaffirmed Fensterer, noting that

the Confrontation Clause is not violated "when a witness testifies as to his current

belief but is unable to recollect the reason for that belie' because the defendant can

always address the witness's bias, his failure to be attentive, factors that may impact

his ability to observe, and his poor memory. United States v. Owens, 484 U.S. 554, 559

(1988). This Court then held that it is permissible under the Sixth Amendment to

admit a witness's out-of-court statement even if the witness cannot remember the basis

-13-

for the statement, as the defense can attack the witness on cross-examination using

similar methods. Owens, 484 U.S. at 558-60 (quoting Green, 399 U.S. at 188 (Harlan,

J. concurring)).

Crawford and its axiomatic rule arguably overturned these decisions, at least

to the extent that testimonial out-of-court statements can be introduced as substantive

evidence, and it represented a revolutionary shift in the way that Confrontation Clause

issues concerning such statements are analyzed. Crawford, 541 U.S. at 6Q. In reaching

its holding, this Court recognized that "the principal evil at which the Confrontation

Clause was directed was the . . .use of ex pane examinations. as evidence against the

accused. Id. at 50. This premise, along with the revolutionary nature of Crawfo~~d,

undermines the conceptions of availabilit5j that existed pre-Crawford, but postDouglas, and signals a shift back towards Douglas's conception of availability.

In turn, the Appellate Court of Illinois's decision in the case at bar is at odds

with the spirit of Crawford. It does not matter that Alexis testified to events that

occurred before or after the incident Moore was charged for or to the nature of hex'

relationship with Moore. People v. Moore, 20L3 IL App (2d) 220289, ¶'~ 27-31. Instead,

what the Confrontation Clause prohibits is the "use. of ex pane examinations as

evidence against the accused," and that is precisely what happened here. Crawford,

541 U.S. at 50. Moore could not cross-examine Alexis concerning her out-of-court

statements regarding the offense at the time they were made because he was not

present, and he could not do so when Alexis testified at trial because she did not recall

what happened, the circumstances surrounding the statements, or even making the

statements themselves. Despite this, the statements were admitted into evidence, and

-14-

the trial court specifically relied upon them to find Moore guilty. (R.153-55). Indeed,

there was no other evidence presented at trial the court could rely on to find Moore

committed domestic battery. See 720 ILLS 5/12-3.2(a)(2) (2021) (defining the offense

of domestic battery physical contact).

The idea behind the Confrontation Clause came from English common law,

which traditionally required adversarial testing. Crawford, 541 U.S. at 43. Crossexamination is the way the defense tests the witness's credibility, including the truth

of his testimony. Davis v. Alaska, 415 U.S. 308, 316 (1974). Indeed, cross-examination

is frequently called the "greatest legal engine ever invented for the discovery of truth."

Green, 399 U.S. at 158. Common sense dictates it is simply impossible to test the

veracity of prior out-of-court statements during cross-examination if the witness does

not even remember making them or the events underlying them. Richard D. Friedman,

Prior Statements of a Witness: A Nettlesome Corner of the Hea~~say Thicket, 1995 SI7P.

CT. REV. 277, 319; Christopher B. Mueller, C~~oss-Examination Earlie~~ or Later: When

is it Enough to Satisfy Crawford?, 19 REGENT U. L. REV. 319, 331, 342-43 (2007). Crossexamination of the declarant is thus utterly useless under such circumstances.

Christopher B. Mueller &Laird C. Kirkpatrick, 4 Federal Evidence § 8:37 (4th ed.

2023). If cross-examination is useless under such circumstances, the defendant

accordingly cannot subject the statements to the rigors of adversarial testing through

cross-examination. The Confrontation Clause protects the right to cross-examine

witnesses, Douglas, 380 U.S. at 418, so it follows that, under Crawford, the

Confrontation Clause is violated when the declazant is present at trial, testifies that

she does not remember the events or the out-of-court statements she made about them,

-15-

and the prosecution seeks substantive use of her out-of-court statements. See Goforth

v. State, 70 So.~d 174, 187 (Miss. 2011) (citing Crawford, 541 U.S. at 60) (finding a

Confrontation Clause violation when a declarant testified at trial that he did not

remember the events the defendant was charged with or making a written statement

concerning the events because "[t]he goal of the Confrontation Clause is to assess the

reliability of evidence by testing it in the crucible of cross-examination" and the court

could not find that the declarant's "statement was subjected legitimately to that

crucible" under such circumstances); Maryland U. Craig, 497 U.S. 836, 845 (1990) ("The

central concern of the Confrontation Clause is to ensure the reliability of the evidence

against a criminal defendant by subjecting it to rigorous testing in the context of an

adversary proceeding."). In noting that the Confrontation Clause protects the accused

against the "use of exparte examinations," Crawford thus represents a shift from away

from Owens. Crawford, 541 U.S. at 50.

If out-of-court statements are admissible under the Confrontation Clause even

if the declarant is physically present at trial but does not recall the statements or the

events underlS~ing them, the end result is what happened here: out-of-court statements

in evidence despite the defendant having no appartunity to test the validity of them

through cross-examination of the declarant herself.1~11 the prosecution would need in

this situation is a warm body on the stand who is "available" only in the pure technical

term, in that she is physically present. Richard D. Friedman, Failure to Answer

Questions on

Cross,

THE CONFRONTATION BLOG (May

13, 200 3, 10:34 !~M),

hops://confrontationright.blogspot.com/2008105/failure-to-answer-questions-on-cross

.html (last visited January 25, 2024). The government would be able to obtain

convictions using untested, ex pa~~te examinations—and government witnesses to

defeat even an opportunity for effective cross-examination—if the witness testifies in

such a manner. The Confrontation Clause demands more. See Davis, 415 U.S. at 31516 (quoting 5 J. VVigmore, Evidence § 1395, p. 123 (3d ed. 1940)} ("Confrontation means

more than being allowed to confront the witness physically. . . . The opponent demands

confrontation, not for the idle purpose of gazing upon the witness, or of being gazed

upon bs~ him, but for the purpose ofcross-examination, which cannot be had except by

the direct and personal putting of questions and obtaining immediate answers."). In

short, the appellate court's holding in the case at bar creates anend-around that guts

this Court's holding in Crawford.

For a witness to be available under Crawford, the Confrontation Clause must

mandate nothing less than a pzesent declarant. testifying as to the events underlying

the charges and regarding her prior statements, meaning she must affirm the out-ofcourt statements as Douglas required, or at least deny the veracity of the statements

and explain why they are not true. Douglas, 380 U.S. at 420; Mueller, CrossExamination Earlier or Later: When is it Enough to Satisfy Crawford?, supra, at 33435, 364. This is so because the Confrontation Clause demands cross-examination,

which in turn tests the truth of statements. Douglas, 380 U.S. at 418-19; Davis, 415

U.S. at 316. A defendant cannot test the truth ofout-of-court statements during crossexamination of the declarant if she does not recall the basis for the statements or their

substance because, under such circumstances, the defendant does not possess even the

opportunity demonstrate what he ultimately seeks to establish during crossexamination of the declarant: that the substance of the prior statements themselves

-17-

are false. Friedman, Prior Statements of a Witness: A Nettlesome Corner of the Hearsay

Thicket, supra, at 298; Mueller, Cross-Examination Earlier or Later: When is it Enough

to Satisfy Crawford?, supra, at 331, 335. This problem is only exacerbated when the

declarant, like here, does not recall the circumstances in which the statement was

made. Unlike in Owens, the defendant cannot even question the declarant about her

biases, failure to be attentive, things that may have impacted her ability to observe,

and her poor memory when such occurs. Goforth, 70 So.3d at 186. The problem is also

particularly concerning in a case like this where the only people present were the

declarant and the defendant, the latter of whom has the right not to be to compelled

to

testify

against

himself.

U.S.

Const.

amend.

V.

In

short,

ex parte,

untested examinations are being substantively used against the accused with the

factfinder being asked to find guilt based on the statements alone, which is what

happened here. (R.153-55). This is squarely contrary to Crawford. Crawford, 541 U.S.

at 43, 50.

The Appellate Court of Illinois is not alone in undermining Crawford. In many

other jurisdictions, courts have found no Confrontation Clause violation where prior

out-of-court statements were admitted after the declarant at trial did not recall making

the out-of-court statements or the events underlying them, some of them even relying

on the post-Douglas, pre-Crawford cases discussed above. See, e.g., Yanez v. Minnesota,

562 F.3d 958, 960-61, 963-65 (8th Cir. 2009); State v. Gorman, 854 A.2d 1164, 1167-69,

1177-78 (Me. 2004); Mercer v. United States, 864 A.2d 110, 113-14, 114 n.4 (D.C. Cir.

2004); State v. Fields, 201 P.3d 586, 587-88, 590, 596-600 (Haw. 2Q05); State v. Price,

146 P.3d 1183, 1183-85, 1187-88, 1190-92 (Wash. 2006); State z~. Pierre, 890 A.2d 474,

497-502 (Conn. 2006); State v. Holliday, 745 N.4~~.2d 556, 561, 564-66 (Minn. 2008);

People v. Legere, 958 A.2d 969, 973-79 (N.H. 2008); State u. McManus, 990 A.2d 1229,

1232-33, 1237-38 (R.I. 2010); Woodall v. State, 336 S.W.3d 634, 637-38, 641-44 (Tex.

Crim. App. 2011); State u. White, 243 So.3d 12, 13-16 (La. Ct. App. 2018). However, for

the same reasons as discussed above, this is contrary to this Court's declaration that

the purpose of the Confrontation Clause is to prevent the "use of ex pane examinations

as evidence against the accused" and the concept that the defense should have the

opportunity to subject such statements to the rigors of adversarial testing. Crawford,

541 U.S. at 43, 50; Davis, 415 U.S. at 316.

In sum, the Appellate Court of Illinois and numerous other courts throughout

the country undercut Crawford by condoning the admission into evidence of a

declarant's out-of-court statements when she recalls neither the events the statements

describe nor making the statements themselves. This Court should thus grant

certiorari to protect the sanctity of Crawfo~~d and the Confrontation Clause nationwide.

II.

At least in part because of footnote nine in Crawford, courts

across the United States are in conflict regarding whether a

declarant's out-of-court statements are admissible under the

Confrontation Clause when she recalls neither making the

statements nor the events underlying them, leading to frequent

litigation and appeals, thus demonstrating the important need

for this Court to address this question.

The conflict that exists in how courts address issues involving the

"unavailability" of a witness for purposes ofcross-examination is, in part, attributable

to the ninth footnote in Crawford. This has resulted in this issue frequently recurring

in courts across the country, including in petitions for certiorari before this Court,

demonstrating the critical need for this Court to address this issue and ensure national

'~

'

uniformity concerning the issue.

A.

A conflict among courts exists as to whether the admission

of a declarant's out-of-court statements violates the

Confrontation Clause when she fails to recall making the

statements and the events the statements describe.

Several jurisdiction have held there to be no violation of the Confrontation

Clause if the declarant, present at trial, testifies that she does not remember the

events the defendant is charged for or making statements about them, as occurred in

the case at a bar. See supra, pgs 18-19, However, others have found such a situation

to violate the Clause. For example, in a case similar to this one, the Mississippi

Supreme Court found a Confrontation Clause violation after the declarant-witness's

wiitten statement was admitted into evidence after he testified he did not remember

making the statement or the events described in the statement as a result of a car

accident. Goforth v. State, 70 So.3d 174, 180, 182, 185-86, 188 (Miss. 2011). In the

wiitten statement, the declarant made allegations against the defendant. Goforth, 70

So.3d at 182. The declarant "guessed" he could have written the statement. Id. at 180,

182. The prosecution called a police officer, who testified he was piesent when the

witness wrote the statement, and the statement was admitted. Id. at 180, 182. The

court found a Confrontation Clause violation because the declarant's "total lack of

memory deprived [the defendant] any opportunity to inquire about potential bias or the

circumstances surrounding [the declarants] statement." Id. at 186. Also contributing

to its holding was the court's belief that the declaiant's statements could not be

subjected to adversarial testing. Id. at 187 (citing Crawford v. Washington, 541 U.S.

36, 60 (2004)). The court concluded that the defendant "simply had no opportunity to

cross-examine [the declazant] about his statement." Id. The court distinguished Owens

-20-

on the grounds that the declarant in Owens recalled making his prior statement and

thus the defendant had an opportunity to "cast doubt" nn it, whereas the defendant in

Goforth recalled neither the prior statement nor the events underlying it. Id. at 186-87.

Similarly, after a declarant's prior statement was admitted after she "was

unable" to testify about the allegations and gave no response to numerous questions

asked of her at trial, the New Jersey Superior Caurt Appellate Division found a

Confrontation Clause violation. State v. Nyhammer, 932 A.2d 33, 36-37, 42-43 (N.J.

Super. Ct. App. Div. 2007), rev'd on other grounds, 963 A.2d 316, 333-34 (N.J. 2009)

(finding the record inadequate to determine if there was a Confrontation Clause

violation because defense counsel never directly asked the declarant about the

substance of her prior statements on cross-examination). Relying upon Crawford and

its condemnation of ex pane examinations, recognizing that out-of-court statements

should be subjected to the adversarial rigors of cross-examination, and believing a

witness's mere px•esence on the witness stand does not satisfy the Clause, the court

held that the declarant's "complete inability to present current beliefs about any of the

material facts, or to testify about her prior statements," resulted in the violation.

Nyhammer, 932 A.2d at 42-43.

The Seventh Circuit has also rejected an argument that, under Crawford, a

declarant need only physically appear for cross-examination. Cookson v. Schwartz, 556

F.3d 647, 651 (7th Cir. 2009). Instead, the court noted, the declarant must be able to

"defend of explain' the statement. implicitly suggesting the declarant must be able to

answer questions concerning the statement or the event itself, necessarily requiring

that she remember one, the other, or bath. Id. (citing Crawford, 541 U.S. at 59, n.9).

One court has even suggested that a declarant's failure to recall the underlying events

alone could be enough to violate the Confrontation Clause. See tTnited States v. Ausby,

436 F.Supp.3d 134, 151 n.5 (D.D.C. 2019) ("If the witnesses are completely unable to

provide testimony regarding the factual matter for which they are being called, due to

the passage of time and withering memory not attributable to any action by the

defendant, the defendant's ability to cross-examine the witnesses may be so

compromised as to require that their prior testimony be excluded under the

Confrontation Clause.").

Given the nationwide conflict in authority regarding the issue in the case at bar,

and to ensure uniformity with regard to the issue across the country, this Court should

grant this petition in order to address whether, under the circumstances present in this

case, the Confrontation Clause is violated.

B.

Footnote nine in Crawford is contradictory with regard to

whether a witness's mere presence at trial satisfies the

availability requirement.

Not only should this Court grant certiorari in this case because of the previously

discussed conflict in authority throughout the country, but it should also do so because

this Court's own decision in Crawford, specifically footnote nine in the decision, is

contradictory and at least partly responsible for the conflict. This Court should take the

opportunity this case provides to clarify footnote nine with regards to what it means

to be "unavailable" for cross-examination

In Crawford's ninth footnote, this Court noted, "[W]hen the declarant appears

for cross-examination at trial, the Confrontation Clause places no constraints at all on

the use of his prior testimonial statements." Crawford, 541 U.S. at 59, n.9. Later in the

-22-

footnote, this Court added, "The Clause does not bar admission of a statement so.long

as the declarant is present at trial to defend or explain it." Id. (emphasis added).

Plainly read, this Court's former comment suggests that a declarant's out-of-court

statements are admissible as long as she appears physically, regardless of what she

testifies to. If this is true, Alexis's out-of-court statement here would be admissible, as

she was physically present at trial. On the other hand, also plainly read, the latter

comment suggests that the declarant's mere presence is not enough; she must answer

questions regarding her out-of-court statements, or at the very least have the ability

do so. Goforth, 70 So.3d at 186 (quoting Roger W. Kirst, Does Crawford Provide a

Stable Foundation for Confrontation Doctrine?, 71 BROOK. L. REV. 35, 76 (2005}). If this

is correct, the admission ofAlexis's statements here violated the Confrontation Clause,

as she was unable to answer any questions whatsoever about her out-of-court

statements given her lack of memory. (R.50-56, 63-66).

The Minnesota Supreme Court has recognized the contradictory nature of

footnote nine. State v. Holliday, 745 N.~r.2d 556, 565 (Minn. 2008). In Holliday, the

court ultimately found no Confrontation Clause violation when a declarant physically

appeared for trial and testified he did not recall making out-of-court statements or the

events underlying them. Holliday, 745 N.W.2d at 565. The Court held there was no

violation, in part, because the former comment in footnote nine is a "more explicit

assertion." Id. 565-66. What the Minnesota Supreme Court failed to account for,

however, is Crawford's repudiation of ex pane examinations; as discussed above,

allowing nut-of-court statements into evidence when the declarant does not recall

either the statements or underlying events is directly inconsistent with the

-23-

Confrontation Clause's purpose of preventing the "use of ex pane examinations as

evidence against the accused," notwithstanding a declarant's presence at trial.

Crawford, 541 U.S. at 50. The latter comment in footnote nine is more consistent with

Crawford, as the declarant's statements are at least subject to adversarial testing (or

the possibility of it), the ultimate purpose of cross-examination, tendering the

statements not explicitly exparte. Davis v. Alaska, 415 U.S. 308, 316 (1974); Crawford,

541 U.S. at 43.

Footnote nine's contradiction has indeed played a role in the conflict among

jurisdictions, as different courts have read the footnote as requiring the two differing

things. In contrast to the Minnesota Supreme Court, the Seventh Circuit, pointing to

the latter comment from this Court in Crawford's ninth footnote, has recognized that

the former comment is "not dispositive," implicitly recognizing that the Confrontation

Clause and Crawford require more than just a declarant's mere presence on the stand.

Cookson, 556 F.3d at 651.

This Court should grant this petition to clarify when a witness is available for

cross-examination under Crawford's ninth footnote.

C.

This question repeatedly confronts reviewing courts across

the country and has been the basis of numerous petitions

for certiorari, indicating this question's importance and a

national need for this Court to address the question.

The need for review of this issue regarding "unavailability" for crossexamination. is demonstrated further by the fact that it has been subject to no fewer

than three petitions for writ of certiorari before this Court. See Petition for Writ of

Certiorari, Blakeney u. United States, 562 U.S. 897 (2010) (Nn. 10-215) 2010 ~'L

3236719, at ~i; Petition for Writ of Certiorari at i, Tapia u. New York, 140 S.Ct. 643

(2019) (No. 19-159) 2019 VVL 3545864, at ~i; Petition for Writ of Certiorari at i, White

v. Louisiana, 140 S.Ct. 647 (2019) (No. 18-8862). Lower courts and practitioners clearly

need guidance regardingwhen a witness is unavailable under Crawford, but this Court

denied the petitions on all three occasions. Blakeney, 562 US at 897; Tapia, 140 S.Ct.

at 643; White, 140 S.Ct. at 647. This Court should thus grant this petition to provide

an answer, as the frequency of the disparate opinions indicate the issue will continue

to arise until this Court provides a definitive answer as to the question of

"unavailability" as described in Crawford.

-25-

CONCLUSION

For the foregoing reasons, petitioner, Armani Moore, respectfully prays that a

writ of certiorari issue to review the judgment of the Illinois Appellate Court.

Respectfully submitted,

//s// Jeffrey Bruce Kirkham

JEFFREY BRUCE KIRKHAM

Counsel of Record

Assistant Appellate Defender

Office of the State Appellate Defender

Second Judicial District

One Douglas Avenue, Second Floor

Elgin, IL 60120

(847) 695-8822

2nddistrict.eserve@osad.state.il.us

COUNSEL FOR PETITIONER

Of Counsel:

ELLIOTT A. BORCHARDT

Assistant Appellate Defender

-26-