Petition for Writ of Certiorari — Dixon v. Illinois

Supreme Court, Us,

an’ rFiLEpD

94 173 JUL 26 19%

No. SFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1994

+

CARL DIXON,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

+

Petition For Writ Of Certiorari

To The Appellate Court Of Illinois

¢

PETITION FOR WRIT OF CERTIORARI

*

LawrENCE C. MARSHALL

Counsel of Record

357 East Chicago Ave.

Chicago, Illinois 60611

(312) 503-7412

JEFFREY URDANGEN

343 S. Dearborn St., Ste. 1510

Chicago, Illinois 60604

(312) 939-0330

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether a witness who repeatedly and successfully

invokes his Fifth Amendment right and refuses to testify

about an out-of-court statement when questioned by the

prosecution on direct examination is “available” for

cross-examination by the defendant about that out-of-

court statement, as required by the Confrontation Clause

of the Sixth Amendment.

li

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ............

SROs Se RP Es iis Ss Vadis wines Aled tes

SE Se, PRA ERO SAI 4 6s 560 bees be canes ctyuees

Co IE. CRRINET eis Guo e deo aeekesaveeeeasweees

SIAL SMe. OF FURISIIC TION. 2... 66s ences cccess

CONSTITUTIONAL PROVISIONS INVOLVED......

SELES TES NA BURBS s ec pbiaacdpenvenrbwenswes

A.

B.

‘.

D.

The Testimony of Christopher Carlisle.......

Introduction of Carlisle’s Out-Of-Court State-

ty ei: eg een ear tamoteen

PE ee Perey Oe Peer ey ED

REASONS FOR GRANTING THE WRIT ...........

I.

A WITNESS WHO HAS REPEATEDLY AND

SUCCESSFULLY INVOKED HIS FIFTH AMEND-

MENT RIGHT TO REFUSE TO TESTIFY. ON

DIRECT EXAMINATION IS “UNAVAILABLE”

FOR CONFRONTATION EVEN IF THE DEFEN-

DANT DOES NOT GO THROUGH THE FUTILE

AND ETHICALLY DUBIOUS FORMALITY OF

FORCING THE WITNESS TO CONTINUOUSLY

REPEAT HIS ASSERTION OF THE PRIVILEGE

ON CROSS-EXAMINATION .................45.

i ee -

iii

TABLE OF CONTENTS - Continued

Page

A. The Introduction Of An Out-Of-Court State-

ment About Which The Declarant Is Unavail-

able To Testify Is A Paradigmatic Violation Of

A Defendant’s Right To Confront The Wit-

IE I IS vo ven cseeescsececerss

B. A Defendant Need Not Perform The Futile

Act Of Trying To Cross-Examine A Witness

Who Already Has Unequivocally And Suc-

cessfully Invoked His Privilege To Refuse To

Co OAS AS Ae ee

C. Requiring The Defendant To Call A Witness

To The Stand When It Is Obvious That The

Witness Will Invoke The Privilege Against

Self-Incrimination Violates Settled Rules Of

Procedure And Ethics Governing The Con-

SN ak Laan) « wAlbisins vic s0G bbe eee

D. The Witness In This Case Unequivocally

Asserted His Fifth Amendment Right And

Refused To Testify On The Material Issues

Surrounding The Out-Of-Court Statement

re er ee

SE SO a

APPENDIX

Opinion of The Appellate Court Of Illinois. ..App.

Order of the Supreme Court Of Illinois, denying

CE rs a ne App.

Order of Associate Justice John Paul Stevens,

extending the time for filing a Petition for a

OD oeriise soc cus eveccedvecess« App.

Order of the Appellate Court Of Illinois, deny-

ing Petition for Rehearing ..................1 App.

11

13

20

22

25

13

15

iv

TABLE OF AUTHORITIES

Page

Cases

Bruton v. United States, 391 U.S. 123 (1968).......... 16

California v. Green, 399 U.S. 149 (1970) ........... 10, 13

Davis v. Alaska, 415 U.S. 308 (1974) ................. 11

Delaware v. Fensterer, 474 U.S. 15 (1985) ............. 22

Douglas v. Alabama, 380 U.S. 415 (1965).......... passim

Fountain v. United States, 384 F.2d 624 (5th Cir.

1967), cert. denied, 390 U.S. 1005 (1968)........... 24

Lee v. Illinois, 476 U.S. 530 (1986) ........ 12, 13, 15, 16

Mattox v. United States, 156 U.S. 237 (1895).......... 10

Mayes v. Sowders, 621 F.2d 850 (6th Cir.), cert.

ro ie ae 13, 24

Michigan v. Dyer, 425 Mich. 572, 390 N.W.2d 645

SS SE oe os eee ae cpa aces oh oie aee 20

Nelson v. O’Neil, 402 U.S. 622 (1971) ................ 22

Ohio v. Roberts, 448 U.S. 56 (1980)................ 12, 16

People v. Nally, 134 ill. App. 3d 865, 480 N.E.2d

eee ee EP arr ee ie reer or 20

People v. Rosenthal, 670 P.2d 1254 (Colo. App. 1983) .... 18

Pointer v. Texas, 380 U.S. 400 (1965) ................. 11

Rice v. Marshall, 709 F.2d 1100 (6th Cir. 1983), cert.

denied, 465 U.S. 1034 (1984)..............0eeeeeee 12

\

=

,

TABLE OF AUTHORITIES

Page

Robinson v. Statz, 102 Wis. 2d 343, 306 N.W.2d 668

Sr, ERG io 05 EAE een cae es aod oe ces 12

State v. Hansen, 312 N.W.2d 96 (Minn. 1981)......... 17

State v. Smith, 415 A.2d 553 (Me. 1980).............. 18

Thomas v. Cuyler, 548 F.2d 460 (3rd Cir. 1977) ....... 12

United States v. Adams, 759 F.2d 1099 (3d Cir.), cert.

COT, “GG Ee. PPK COPE eek ees ce ahd eles 17

United States v. Berrio-Lodono, 946 F.2d 158 (1st Cir.

1991), cert. denied, 112 S.Ct. 1223 (1992).......... 24

United States v. Brainard, 690 F.2d 1117 (4th Cir.

1 | | ARS Pe SPENT oA ie ar Sane Le rrre Mel Br a ice See Ay en 18

United States v. Cardillo, 316 F.2d 606 (2nd Cir.),

Gert. Genieg, 375 WB. G22 CISC) «inc cc nci ne cciccwcs 24

United States v. Doddington, 822 F.2d 818 (8th Cir.

3 POE Sapieaaea gS ee SPY emai nD, are aun igo 20

United States v. Flores, 985 F.2d 770 (5th Cir. 1993) 12, 17

United States v. Harrell, 788 F.2d 1524 (11th Cir.

BN 53S 4 5 ween Ee ha ek et ee ch aes 17

United States v. LaRiche, 549 F.2d 1088 (6th Cir.),

cert. denied, 430 U.S. 987 (1977).................. 25

United States v. Lyons, 703 F.2d 815 (5th Cir. 1983) .... 20

vi

TABLE OF AUTHORITIES

United States v. Martin, 526 F.2d 485 (10th Cir.

OZER PURI at SOAS oa

United States v. Oropeza, 564 F.2d 316 (9th Cir.

1977), cert. denied, 434 U.S. 1080 (1978)........

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

United States v. Pelton, 578 F.2d 701 (8th Cir.), cert.

denied, 439 U.S. 964 (1978) ................208.

United States v. Salerno, 868 F.2d 524 (2nd Cir.),

cert. denied, 493 U.S. 811 (1989) ...............

United States v. Seifert, 648 F.2d 557 (9th Cir. 1980) ....

United States v. Swanson, 9 F.3d 1354 (8th Cir. 1993) ....

United States v. Thomas, 571 F.2d 285 (5th Cir. 1978) ....

Statutes & RuLEsS

See er eo oa cect evade owen cecewees

Federal Rule of Evidence 804..................

OTHER AUTHORITIES

American Bar Association’s Standards Relating To

The Administration Of Criminal Justice,

Defense Function Standard 4-7.6...............

American Bar Association’s Standards Relating To

The Administration Of Criminal Justice, Pros-

ecution Function Standard 3-5.7................

II A. Amsterdam, Trial Manual For The Defense Of

Criminal Cases §§ 378-384 (1984) ...............

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

oo

co

kh on

one

OPINION BELOW

The opinion of the Appellate Court of Illinois, First

District, Fourth Division, affirming Carl Dixon’s convic-

tion, is reproduced at App. 1-11.

4

STATEMENT OF JURISDICTION

Carl Dixon was convicted of murder on October 31,

1991. The Appellate Court of Illinois, First District,

Fourth Division, affirmed the conviction on November

18, 1993 (App. 1-11), and denied Dixon’s Petition for

Rehearing on December 16, 1993. App. 14. The Illinois

Supreme Court denied Leave to Appeal on April 6, 1994.

App. 12. On June 26, 1994, Justice Stevens granted peti-

tioner’s motion to extend the time for filing a Petition for

a Writ of Certiorari to July 26, 1994. App. 13.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides, in pertinent part, that “[i]n all criminal

prosecutions, the accused shall enjoy the right *** to be

confronted with the witnesses against him * * * .”

The Fourteenth Amendment to the United States

Constitution provides, in relevant part, that “[njo State

shall make or enforce any law which shall abridge the

privileges or immunities of the citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law *** .”

¢

STATEMENT OF FACTS

Carl Dixon was convicted of murder based on what

the trial court acknowledged to be very questionable

evidence: an out-of-court statement made by one Christo-

pher Carlisle. Carlisle had been brought in for police

questioning after police arrived at the murder scene and

found Carlisle standing next to the body of the victim,

Patrick Marshall. Tr. A18-20. After a full day of question-

ing, Carlisle allegedly made a statement implicating

Dixon. Tr. B16. At trial, however, Carlisle refused to

answer any {we3tions about this statement, invoking his

Fifth Amendment privilege against self-incrimination. Tr.

A61-64. Nonetheless, the trial court admitted the out-of-

court statement over the objection of the defense. Tr. B10.

The trial court. recognized the significant legal issues

involved in this case, though, and allowed Dixon to

remain free on bond pending appea! The court explained

that the propriety of predicating a conviction on this sort

of out-of-court statement “ought to be specifically

addressed by” higher courts. Tr. B35.

A. The Testimony of Christopher Carlisle

On direct examination by the prosecution, Christo-

pher Carlisle testified that he was with Patrick Marshall

on the morning of May 12, 1990, when Marshall was shot

and killed. Carlisle stated that he was standing with

Marshall on the sidewalk when a green car pulled up to

the curb, someone jumped out of the car, and that person

shot Marshall. Tr. A58. Carlisle testified that it was dark

at the time of the incident and that he did not see the

person who shot Marshall. He testified also that he did

not know who owned the car. Tr. A58-59. This testimony

— that Carlisle could not identify the killer — was entirely

consistent with the information Carlisle gave the police

when they arrived at the scene of the murder. See A25.

Carlisle’s testimony offered no support to the prosecu-

tion’s case against Carl Dixon. The prosecution proceeded,

therefore, to ask Carlisle questions, using information

derived from the alleged out-of-court statement Carlisle had

given te Assistant State’s Attorney David Studenroth the

night after the murder of Patrick Marshall.

Q: Did you see Carl Dixon get out of the car?

A: No, I didn’t.

Q: Did you see Carl Dixon walk up to Patrick?

A: No, sir.

Q: Did you see Carl Dixon with a gun in his

hand?

A: No, sir.

Q: Did you hear Carl Dixon say, “Where is my

shit at?”

A: No, sir.

Q: Did you hear Patrick respond, “I will get it

to you, man.”?

A: No, sir.

Q: Did you see Carl Dixon point that gun at

Patrick and start firing several times at

Patrick?

A: No, sir.

Q: Did you see Patrick run about a half block

and collapse?

A: No, sir. (Ir. A60-61)

Following this testimony, the prosecution showed Car-

lisle the out-of-court statement he was alleged to have

made to Assistant State’s Attorney Studenroth. Tr. A6l.

Carlisle refused to answer any questions about the state-

ment or its substance. In response to every question

about the statement, Carlisle invoked his Fifth Amend-

ment right against self-incrimination. And each and every

time that Carlisle invoked this right, the trial court sus-

tained Carlisle’s claim that he need not answer any ques-

tions about the out-of-court statement that was being

attributed to him:

Q: Is this the statement that you signed for the

assistant state’s attorney?

A: I plead the Fifth.

THE COURT: Sustained.

Q: Is that your signature on the bottom of the

page?

A: I plead.

THE COURT: Sustained.

Q: “What did you tell the state’s attorney?”.

A: I plead the fifth.

THE COURT: Sustained (Tr. A61-64)

The only matter about which Carlisle was willing to

testify with regard to his statement was the fact that he

was questioned by “a state’s attorney” in the lobby of a

police station about what he had seen on May 12, 1990. Tr.

A62-63. Because Carlisle was successfully asserting his

Fifth Amendment privilege in response to all questions

about his May 12 statement (and because at that stage all

of Carlisle’s evidence was favorable to the defense), the

defense asked no questions of Carlisle on cross-examina-

tion. Tr. A66.

B. Introduction of Carlisle’s Out-Of-Court Statement

At this point in the case the prosecution was still with-

out any evidence that could come close to supporting its

charge against Carl Dixon. With its next witness, however,

the prosecution sought to remedy this with the introduction

of evidence relating to the substance of the out-of-court

statement that Carlisle had allegedly made on May 12. The

prosecution called Assistant State’s Attorney David

Studenroth to the stand and elicited testimony from him

about the statement that he had taken from Christopher

Carlisle at approximately 10:00 p.m. on May 12, 1990. Tr.

B2-6. Over strenuous defense objections, Studenroth was

allowed to testify about the contents of Carlisle’s out-of-court

statement. The following testimony about Carlisle’s out-of-

court statement! constituted the sole evidence upon which

the court relied in convicting Dixon:

Q: Mr. Studenroth, in that statement does

Chris Carlisle state that he observed Carl

Dixon get out of the car on May 12, 1990,

8125 South Manistee?

' The State argued that the evidence was admissible as

substantive evidence of guilt —- not simply impeachment of Car-

lisle - under the terms of 725 ILCS 5/115-10.1. Tr. B6-B11.

og

>

>

>

>

>

>

Yes, it does.

And that statement does it say Carl Dixon

then walked toward — he - Chris Carlisle

saying in that statement that he saw Carl

Dixon walk toward Mr. Marshall?

Yes, he did.

And that statement Chris Car'isle says to

you that he saw Carl Dixon with a gun in

his hand?

Yes, it does.

In that statement does Chris Carlisle say

that Carl Dixon at this time asked Patrick

Marshall where’s my shit at?

Yes.

And in that statement does Carlisle say

Patrick Marshall replied I'll get it to you

man?

Yes.

In that statement does Chris Carlisle say

that he then observed Carl Dixon point the

gun at Patrick Marshall and fire several

times?

Yes, it does.

And in that statement does Chris Carlisle

say that he and Patrick Marshall then began

running?

Yes, it does.

And in that statement does it say that Chris

— does Chris Carlisle say in that statement

that I observed Patrick Marshall collapse

after running about half a block?

A: Yes, it does. (Tr. B11-12)

The defense rested without recalling Carlisle to the stand

for cross-examination. Because Carlisle had repeatedly

and successfully invoked the Fifth Amendment to all

questions relating to the statement, defense counsel rec-

ognized the futility and impropriety of recalling Carlisle

to the stand when it was clear that he would successfully

invoke the Fifth Amendment. As defense counsel

explained to the court: “it was already stated by this

Court that he was invoking, correctly so, his privilege

against self-incrimination.” Tr. C23.

C. The Trial Court’s Verdict

In announcing its verdict, the trial court acknowl-

edged that:

absent Carlisle’s impeachment there is no evi-

dence connecting *** Defendant with the acts

which led to the death of Mr. Patrick [sic]. There

is no direct evidence. There is circumstantial

evidence. But that circumstantial evidence

*** just goes to the pointing of the existence [of

a] motive, and the fact that Mr. Dixon was look-

ing for the deceased after the events in that

school yard. Tr. B33.

Nonetheless, relying solely on Carlisle’s out-of-court

statement — a statement about which the defense had no

opportunity to cross-examine Carlisle - the trial court

found Dixon guilty of first degree murder. Tr. B35. The

court later denied Dixon’s motion for a new trial and

sentenced Carl Dixon to twenty years imprisonment. Tr.

C3-26; D3-5. The trial court was, however, extremely

concerned about the legal questions associated with the

admission of evidence about Carlisle’s statements. Hence,

the trial court allowed Dixon to remain free on bond

pending appeal so that higher courts could consider the

issues. Tr. B35.

D. The Appeals

The Appellate Court of Illinois, First Judicial District,

Fourth Division, rejected Dixon’s claim that the introduction

of evidence about Carlisle’s out-of-court statement violated

Dixon’s Sixth Amendment right of confrontation. See App.

10; Brief and Argument of Defendant-Appellant at 30-39. The

Appellate Court ruled that Dixon’s claim that he was unable

to confront Carlisle about the out-of-court statement

amounted to “speculation” because the defendant did not go

through the formality of actually calling Carlisle to the stand

after Carlisle had already asserted his Fifth Amendment

right and refused to answer any and all questions relating to

the out-of-court statement. App. 8. Even though Carlisle had

repeatedly refused to testify about the statement on direct

examination, the court held that Dixon could not “claim a

lack of opportunity to cross-examine Carlisle when he did

not even attempt to call Carlisle to the stand.” App. 8. See

also App. 10. The Illinois Supreme Court denied Dixon’s

Petition for Leave to Appeal. App. 12.

¢

REASONS FOR GRANTING THE WRIT

The Court of Appeals in this case adopted an unrea-

sonable rule for assessing whether an out-of-court declar-

ant is “available” for cross-examination at trial. Contrary

to many of this Court’s statements and the great majority

of lower federal and state court holdings, the Illinois

court ruled that a witness cannot be treated as “unavail-

able” based on his assertion of a Fifth Amendment privi-

lege on direct examination unless the defendant calls the

witness to the stand and forces the witness to invoke his

Fifth Amendment privilege once again in response to

cross-examination. The rule that the Illinois court

announced in this case applies no matter how many times

the witness has already been allowed to assert the privi-

lege in the course of the proceeding and no matter how

obvious it is that the witness will continue to assert the

privilege.

The rule that the Illinois court adopted suffers from a

number of infirmities. First, it artificially interferes with a

defendant’s Confrontation Clause rights by requiring the

defendant to go through the wholly futile act of putting a

witness on the stand when it is clear to all that the

witness will continue to successfully invoke the Fifth

Amendment and will refuse to testify. Worse yet, this

rule places defense counsel in an appalling Catch-22. On

the one hand, if defense counsel calls the witness to the

stand — knowing full well that the witness has already

invoked the privilege and will continue to invoke the

privilege — then defense counsel has violated an estab-

lished rule of trial procedure that prohibits counsel from

calling a witness to the stand when it is known that the

witness will properly refuse to testify. On the other hand,

if defense counsel does not call the witness to the stand —

thereby complying with the rule just mentioned - the

court will assume that the witness was available for

10

cross-examination (and the violation of the defendant's

right to confront witnesses will be ignored). It is essential

that this Court grant this Petition for a Writ of Certiorari

to rectify the glaring violation of Carl Dixon’s right to

confront witnesses, and to provide some much needed

guidance to the lower courts, which continue to grapple

with the standard for assessing when a witness is “avail-

able” for confrontation.

I. A WITNESS WHO HAS REPEATEDLY AND SUC-

CESSFULLY INVOKED HIS FIFTH AMENDMENT

RIGHT TO REFUSE TO TESTIFY ON DIRECT

EXAMINATION IS “UNAVAILABLE” FOR CON-

FRONTATION EVEN IF THE DEFENDANT DOES

NOT GO THROUGH THE FUTILE AND ETH-

ICALLY DUBIOUS FORMALITY OF FORCING THE

WITNESS TO CONTINUOUSLY REPEAT HIS

ASSERTION OF THE PRIVILEGE ON CROSS-

EXAMINATION.

Nearly a century ago, this Court recognized that the

“primary object” of the Confrontation Clause is to “pre-

vent depositions or ex parte affidavits *** being used

against the prisoner in lieu of a personal examination and

cross-examination of the witness.” Mattox v. United States,

156 U.S. 237, 242 (1895); see also California v. Green, 399

U.S. 149, 156 (1970) (the “particular vice that gave impe-

tus to the confrontation claim was the practice of trying

defendants on ‘evidence’ which consisted solely of ex

parte affidavits or depositions”). Indeed, the Court has

recognized that “[t]here are few subjects, perhaps, upon

which this Court and other courts have been more néarly

unanimous than in their expressions of belief that the

11

right of confrontation and cross-examination is an essen-

tial and fundamental requirement for the kind of fair trial

which is this country’s constitutional goal.” Pointer v.

Texas, 380 U.S. 400, 405 (1965).

A. The Introduction Of An Out-Of-Court State-

ment About Which The Declarant Is Unavail-

able To Testify Is A Paradigmatic Violation Of

A Defendant’s Right To Confront The Wit-

nesses Against Him.

In Douglas v. Alabama, 380 U.S. 415 (1965), this Court

established the bedrock principle that a witness who

invokes his or her Fifth Amendment right against self-

incrimination is unavailable for cross-examination for

purposes of the Sixth Amendment. In Douglas, a case

much like this case, the prosecution called a witness

named Loyd who repeatedly invoked his right against

self-incrimination and refused to answer questions about

his out-of-court confession which had implicated Doug-

las. (Loyd had already been tried for the crime). The

prosecutor proceeded to read from the confession, paus-

ing after every few sentences to ask the witness, “Did you

make that statement.” Douglas, 380 U.S. at 416. This Court

was unanimous in condemning this practice: “petitioner’s

inability to cross-examine Loyd as to the alleged confes-

sion plainly denied him the right of cross-examination

secured by the Confrontation Clause.” Id. at 419.

The principle of Douglas, as this Court explained in

Davis v. Alaska, 415 U.S. 308 (1974), is based on the

realization that the constitutional right to confront wit-

nesses requires more than the mere opportunity to have

the witness physically present on the stand:

12

The opponent demands confrontation, not for the

idle purpose of gazing upon the witness, or of being

gazed upon by him, but for the purpose of cross-

examination, which cannot be had except by the

direct and personal putting of questions and

obtaining immediate answers.

Id. at 316 (emphasis in original) (citing 5 J. Wigmore,

Evidence § 1395, p. 123 (3d ed. 1940)). This Court and

lower courts have consistently held that a defendant’s

inability to cross-examine a witness who invokes the Fifth

Amendment “plainly denie[s] him” the Constitutional

right to confront witnesses against him. Lee v. Illinois, 476

U.S. 530, 541 (1986) (quoting Douglas, 380 U.S. at 419).2

It is clear, then, that the introduction of Christopher

Carlisle’s out-of-court statement constituted a dramatic

violation of Carl Dixon’s right of confrontation.* As in

2 See generally United States v. Flores, 985 F.2d 770, 778 (5th

Cir. 1993) (“the unavailability principle has been expanded to

include a witness who, by the exercise of privilege, refused to

testify”) (citation omitted); Rice v. Marshall, 709 F.2d 1100, 1102

(6th Cir. 1983) (“it is clear that a witness is not ‘available’ for

cross-examination when that witness refuses to testify”);

Thomas v. Cuyler, 548 F.2d 460, 463 (3rd Cir. 1977) (“a witness

who refuses to be sworn or to testify at all or one who, having

been sworn, declines to testify on Fifth Amendment grounds,

has not been thus made available for cross-examination” ); Rob-

inson v. State, 102 Wis. 2d 343, 349, 306 N.W.2d 668, 671 (Wis.

1981) (“Where a witness avails himself of his fifth amendment

rights, confrontation is denied”).

3 This is not a case in which other “indicia of reliability”

overcome the constitutional prohibition on admitting evidence

about which the defendant has no opportunity to engage in

cross-examination. See Ohio v. Roberts, 448 U.S. 56 (1980). Nei-

ther the prosecution nor any of the lower courts have ever

13

Douglas, an out-of-court statement was used to convict a

defendant even though the defendant had no opportunity

to examine the declarant about the statement. The only

way that the Illinois court could affirm Dixon’s convic-

tion was to apply a grudging standard for assessing

Confrontation Clause claims and thereby hold that Car-

lisle’s unavailability for cross-examination was somehow

speculative. As will be seen, however, there was nothing

at all speculative about Carlisle’s unavailability, and the

rule that the Illinois court applied cannot survive scru-

tiny.

B. A Defendant Need Not Perform The Futile Act

Of Trying To Cross-Examine A Witness Who

Already Has Unequivocally And Successfully

Invoked His Privilege To Refuse To Testify.

The overwhelming majority of courts have recog-

nized that assessing a witness’s availability for confronta-

tion is a functional — not a formalistic — inquiry. When it is

advanced that claim in this case, and there is no evidence to

support any contention that Christopher Carlisle’s self-serving

statement to police, while Carlisle himself was being questioned

as a suspect, contained any special indicia of reliability. See

generally Lee v. Illinois, 476 U.S. 530, 541 (1986) (“when one

person accuses another of a crime under circumstances in which

the declarant stands to gain by inculpating another, the accusa-

tion is presumptively suspect and must be subjected to the

scrutiny of cross-examination”); Mayes v. Sowders, 621 F.2d 850,

856 (6th Cir. 1980) (self-serving statement by suspect under

questioning lacks any special, inherent reliability). Nor is this a

case in which any prior opportunity to cross-examine the

declarant satisfied Dixon’s rights under the Confrontation

Clause. See California v. Green, 399 U.S. 149 (1970).

14

obvious that the witness will invoke his Fifth Amend-

ment right and refuse to testify, courts have had no

difficulty in declaring the witness unavailable and have

not required that the witness be physically called to the

stand and forced to invoke or re-invoke the privilege.

Many of these cases have involved “unavailability” under

the Confrontation Clause; others have involved

“unavailability” with regard to rules of evidence similar

to Federal Rule of Evidence 804.4 In both contexts, how-

ever, the great majority of courts, including this Court,

have consistently eschewed any requirement that the wit-

ness be forced to formally invoke, much less re-invoke,

the Fifth Amendment as a condition of showing

unavailability.

This Court’s approach to this question has not yet

been the subject of a square holding (which is the reason,

of course, that granting this Petition for a Writ of Cer-

tiorari is appropriate). A number of this Court’s decisions

reveal, though, that this Court has never required any-

thing close to a formal assertion, much less re-assertion,

of the Fifth Amendment as a condition of finding a wit-

ness unavailable.

4 Rule 804(b) provides that certain types of out-of-court

statements “are not excluded by the hearsay rule if the declarant

is unavailable as a witness.” It should be noted that cases adopt-

ing a functional inquiry in applying Rule 804, which requires

that the witness “be exempted by ruling of the court on the

ground of privilege,” are especially persuasive authorities with

regard to the Confrontation Clause, which contains no such

precise requirement that “unavailability” be based on the wit-

ness’s having been exempted from testifying by a “ruling of the

court.”

15

For example, in Douglas, the witness, Loyd, had been

called to the stand by the prosecution and had repeatedly

asserted his Fifth Amendment right on direct examina-

tion when asked about his out-of-court statement. The

defendant, Douglas, made no effort to call Loyd to the

stand to pursue cross-examination about the statement.

See Douglas v. Alabama, Record at 131-132. Yet, this Court

held, without apparent reservation, that Loyd was

unavailable for cross-examination and that the references

to his out-of-court statements violated Douglas's rights

under the Confrontation Clause. (Of course, under the

approach applied by the Illinois court in this case, Loyd’s

unavailability on cross-examination would have been

deemed “speculative” because Douglas never formally

called Loyd to the stand and never forced him to re-

invoke on cross-examination the privilege that he had

already invoked repeatedly on direct examination.)

Similarly, in Lee v. Illinois, the prosecution introduced

the out-of-court statement of defendant Thomas as evi-

dence against defendant Lee. In support of its finding

that defendant Lee was not able “to confront and cross-

examine” Thomas, this Court observed simply that “nei-

ther defendant testified at trial.” Lee, 476 U.S. at 536. The

Court most certainly did not require Lee to call Thomas

to the stand in order to demonstrate what was already

obvious — that Thomas had chosen to invoke his Fifth

Amendment right.

The dissent in Lee was even more explicit on this

point. The four dissenters in Lee agreed that Thomas was

““unavailable’ as a witness.” Id. at 549 (Blackmun, J.,

with whom Burger, C.J., and Powell & Rehnquist, JJ.,

16

joined, dissenting).5 In support of this conclusion, the dis-

senters explained that “[a]lthough physically present in the

courtroom, [Thomas] clearly would have invoked his privilege

against self-incrimination if called to the stand.” Id. at 549

(emphasis added). The dissenters explained further that

“[b]ecause the State did not call Thomas to testify, he did not

expressly invoke his Fifth Amendment privilege. In the cir-

cumstances of this case, however, the absence of this formality

is not decisive,” in large part because “such an effort” would

“have been futile.” Id. at 549 n.3. (emphasis added) This

analysis is a far cry from the demand for elaborate formality

that the Illinois court imposed here.

One further example of this Court’s functional approach

can be gleaned from the Court's decision in Bruton v. United

States, 391 U.S. 123 (1968). In holding that the introduction of

the out-of-court statement of defendant Evans violated the

Confrontation Clause rights of defendant Bruton, the Court

observed that the statement was introduced “in a form not

subject to cross-examination, since Evans did not take the

stand.” Id. at 128. Here, again, the Court did not demand that

Bruton go through the futile act of actually calling Evans to

the stand in order to show that Evans would refuse to testify.

As this Court stated in Ohio v. Roberts, 448 U.S 56, 74 (1980):

“The law does not require the doing of a futile act.”

This Court’s decisions in Douglas, Lee, and Bruton

reveal how far removed the Illinois court’s approach is

5 The dissent in Lee argued that the evidence was, nonethe-

less, sufficiently reliable to be admitted. 476 U.S. at 551-557.

That theory of admissibility has no relevance to Carlisle’s state-

ment. See supra, note 3.

17

from the approach that this Court has consistently fol-

lowed. A review of the decisions of various federal courts

of appeals and state courts similarly reveals that the

Illinois court’s approach is out of step with the majority

position.

For example, in United States v. Adams, 759 F.2d 1099

(3d Cir. 1985), a potential witness’s counsel made clear

that the witness would invoke the privilege and refuse to

testify if called to the stand. The court heid that the

witness was clearly unavailable and explained that “the

confrontation clause does not require the futile act of

calling [a witness] to the stand in open court to testify

only to have him refuse.” Id. at 1107. Similarly, in State v.

Hansen, 312 N.W.2d 96 (Minn. 1981), two witnesses who

had given out-of-court statements refused to testify about

the statement when called on direct examination. In hold-

ing that admission of the out-of-court statements violated

the defendant’s Confrontation Clause rights, the Minne-

sota Supreme Court recognized that the defendant did

not try to call the witnesses to the stand for cross-exam-

ination. Nonetheless, the court held that the witnesses

were clearly unavailable for cross-examination because

any “attempt at cross-examination would have been

futile.” Id. at 103 n.5.

Many other courts have used this same approach and

have conducted a practical inquiry into whether the wit-

ness was available. See, e.g., United States v. Flores, 985

F.2d 770, 774 n.9 (5th Cir. 1993) (witness was unavailable

for cross-examination even though “he did not personally

utter the magic words or take the stand”); United States v.

Harrell, 788 F.2d 1524, 1526 (11th Cir. 1986) (witnesses

were unavailable in case in which they were defendants

18

and “were privileged against testifying”); United States v.

Brainard, 690 F.2d 1117, 1123 (4th Cir. 1982) (declining “to

require the defense actually to produce [the witness] and

obtain a formal ruling on his assertion of the privilege”

when doing so would constitute “mere formalism”);

United States v. Thomas, 571 F.2d 285, 288 (Sth Cir. 1978)

(rejecting “mere formalism” of requiring co-defendant to

assert privilege in court when it was “patent” that the co-

defendant would successfully assert the privilege); State

v. Smith, 415 A.2d 553, 559 (1980) (unavailability was

shown where the witness “stated that she would invoke

her Fifth Amendment privilege against self-incrimination

if called to testify at defendant's trial”).

On the other hand, a number of courts have applied a

standard much closer to the standard that the Illinois

court applied in this case. For example, in United States v.

Pelton, 578 F.2d 701 (8th Cir. 1978), the court held that the

witness could not be deemed unavailable because the

witness had not stated “firsthand and in the court’s pres-

ence that she did intend to refuse to testify in reliance on

her fifth amendment privilege.” Id. at 709. Similarly, in

United States v. Salerno, 868 F.2d 524, 542 n.8 (2nd Cir.

1989), the court adopted the Pelton approach and ruled

that a formal assertion of privilege is necessary to show

unavailability. See generally United States v. Oropeza, 564

F.2d 316, 325 n.8 (9th Cir. 1977) (“express claim of privi-

lege and a ruling thereon should be made”); People v.

Rosenthal, 670 P.2d 1254, 1256 (Colo. Ct. App. 1983)

(“declarant must actually invoke the privilege before the

trial court, and the trial court must rule that the privilege

is available”).

19

The conflict among lower courts that we have

described is a real one, and a decision by this Court

would provide much needed guidance in this area. It

must be noted, however, that no court - even those

requiring a more formal in-court assertion of the Fifth

Amendment as a condition of declaring a witness

unavailable — has ever gone so far down the road of

requiring futile formalism as the Illinois court did in this

case.

Here, Christopher Carlisle did take the stand, and

Carlisle did invoke his privilege in response to every

question about his out-of-court statement, and the trial

court did hold that Carlisle was properly invoking the

privilege. See supra 4-5. It is simply irrational to require a

defendant, after all that, to call the witness to the stand

once again and to ask those same questions all over

again. The Illinois court created an unreasonable and

unprecedented rule in order to avoid the result that the

Constitution so obviously compels here: Carl Dixon’s

Sixth Amendment rights were violated by the admission

of an unreliable out-of-court statement that he had no

opportunity to confront. Mr. Dixon asks this Court to use

this opportunity to right this wrong, while at the same

time providing the lower courts with guidance on these

recurring legal issues.

20

C. Requiring The Defendant To Call A Witness To

The Stand When It Is Obvious That The Wit-

ness Will Invoke The Privilege Against Self-

Incrimination Violates Settled Rules Of Pro-

cedure And Ethics Governing The Conduct Of

Trials.

As we have explained, the rule that the Illinois court

imposed here senselessly requires a defendant to under-

take the futile act of recalling a witness to the stand, even

though it is beyond question that the witness will con-

tinue to refuse to testify. Worse than being senseless,

though, the rule is also offensive to fundamental princi-

ples of trial procedure and trial ethics.

Established principles of trial procedure provide that

a “defendant does not have the right to call a witness to

the stand simply to force invocation of the right against

self-incrimination.” United States v. Swanson, 9 F.3d 1354,

1359 (8th Cir. 1993) (quoting United States v. Doddington,

822 F.2d 818, 822 (8th Cir. 1987)). See generally United

States v. Lyons, 703 F.2d 815, 818 (5th Cir. 1983) (“if the

judge sustains a witness’ assertion of the privilege, the

defendant has no right to call the witness to the stand”)

(citing cases); United States v. Martin, 526 F.2d 485, 487

(10th Cir. 1975) (judge properly refused to allow counsel

to call witness to the stand when “all concerned knew full

well that the informant intended to invoke his Fifth

Amendment right not to testify. He had already done so

successfully at the first trial”); People v. Nally, 134 Ill.

App. 3d 865, 869-870, 480 N.E.2d 1373, 1378 (Ill. App. Ct.

1985) (“it is improper for a party to call a witness whom

he has reason to believe will invoke this privilege”);

Michigan v. Dyer, 425 Mich. 572, 576, 390 N.W.2d 645, 647

21

(Mich. 1986) (“the rule of law remains the same: a lawyer

may not knowingly *** call a witness knowing that he

will claim a valid privilege not to testify”).

This rule has a significant ethical component as well.

The American Bar Association’s Standards Relating To

The Administration Of Criminal Justice provide that

“defense counsel shall not call a witness in the presence

of the jury who the lawyer knows will claim a valid

privilege not to testify.” Defense Function Standard 4-7.6;

see also Prosecution Function Standard 3-5.7.°

When these legal principles and ethical mandates are

combined with the rule that the Illinois court imposed in

this case, the defense is placed in an unworkable

Catch-22. On the one hand, it is improper to call a witness

who will clearly invoke his Fifth Amendment right (a

witness like Christopher Carlisle who had already taken

the Fifth successfully on direct examination). On the

other hand, the Illinois court has now held that comply-

ing with the rules of ethics and trial procedure (and

declining to call such a witness) forecloses a defendant's

opportunity to show that a witness was “unavailable” for

cross-examination. Some guidance from this Court is

badly needed.

6 Carl Dixon was tried in a bench trial, but the Confronta-

tion Clause surely does not incorporate a different definition of

unavailability for bench and jury trials.

22

D. The Witness In This Case Unequivocally

Asserted His Fifth Amendment Right And

Refused To Testify On The Material Issues Sur-

rounding The Out-Of-Court Statements That

Were Admitted.

The fact that Christopher Carlisle was willing to tes-

tify about matters not related to his out-of-court state-

ment did not, in any sense, satisfy Carl Dixon’s right to

confront Carlisle about the out-of-court statement that

was used to convict Dixon. Carlisle’s out-of-court state-

ment could not constitutionally be admitted as substan-

tive evidence against Dixon unless Dixon was provided

an “opportunity for effective cross-examination” on the

full range of issues related to the out-of-court statement.

See United States v. Owens, 484 U.S. 554, 559 (1988). The

restrictions imposed on cross-examination by virtue of

Carlisle’s invoking the Fifth Amendment on issues relat-

ing to the most potentially incriminating evidence in the

prosecution’s case served to “effectively * * * emasculate

the right of cross-examination itself.” Delaware v. Fen-

sterer, 474 U.S. 15, 19 (1985).

As the trial court noted, Carlisle’s out-of-court state-

ment constituted the only evidence that, if believed, truly

incriminated Carl Dixon. Tr. B33. Cf. Douglas, 380 U.S. at

419 (the unavailable witness’s “alleged statement that the

petitioner fired the shotgun constituted the only direct

evidence that he had done so”). Yet, Carlisle refused to be

examined on any matters related to the statement.’

7 This is not a case like United States v. Owens, 484 U.S. 554

(1988), or Nelson v. O'Neil, 402 U.S. 622 (1971), in which‘a wit-

ness did testify, but testified in a manner that frustrated the

23

Invoking his Fifth Amendment right not to admit that he

lied to the authorities when he implicated Dixon on May

12, Carlisle repeatedly: (a) refused to answer any ques-

tions relating to whether he actually made the statement;

(b) refused to answer any questions relating to whether

he signed the statement; (c) refused to answer any ques-

tions about things he said or did not say to the State’s

Attorney.

The devastating effect that Carlisle’s invocation of his

right against self-incrimination® had on Dixon’s defense

cannot be overstated. The only way to defend Carl Dixon

was to convince the trier of fact that the statement that

Carlisle allegedly made on the night after the murder was

false. The only way to_defend Carl Dixon was to ask

Carlisle about whether he, in fact, made the statement

and, if so, what motives he had in making it. For exam-

ple, constitutionally adequate cross-examination would

have included, among other questions, questions about:

(a) whether Carlisle made or signed the statement at all;

defendant's goals on cross-examination. Those cases raised no

Confrontation Clause problems because the witnesses were

available, in every sense of the word, to be confronted. Nothing

stopped the defendant in those cases from asking any questions

they wanted, and the witnesses were compelled to answer all

questions. Here, by contrast (as in Douglas and Lee), the witness

was not available, by virtue of a legal barrier as formidable as

any physical barrier, to answer the questions that the defendant

needed to have answered.

8 The trial court repeatedly uphetd Carlisle’s right to assert

his privilege. It is, of course, immaterial whether the judge was

correct in allowing Carlisle to assert his Fifth Amendment right.

See Douglas, 380 U.S. at 420.

2 =-— Ss

24

(b) whether Carlisle made the statement that night because

he himself was a suspect in the murder and because he

had been told that if he signed the statement he would be

allowed to go home that evening; and (c) whether he made

the siatement because he held some grudge against Carl

Dixon. See generally II A. Amsterdam, Trial Manual For The

Defense Of Criminal Cases §§ 378-384 (1984). Carl Dixon was

stripped of his right to confront Carlisle with these critica!

questions — questions upon which Dixon’s freedom turned

~ when Carlisle refused to answer any and all questions

about the May 12 statement.’

° It is obvious that the questions that the defense was pre-

cluded from putting to Carlisle went to the heart of the matter at

issue here; they were in no sense “collateral” to the damaging

evidence about Carlisle’s statement that was introduced. Under

these circumstances, courts have recognized universally the

constitutional impropriety of admitting evidence about which

the defendant is precluded from engaging in cross-examination.

See generally United States v. Berrio-Lodono, 946 F.2d 158, 160 (1st

Cir. 1991) (Confrontation Clause precludes introduction of testi-

mony if witness refuses to be examined with “respect to a

material issue” related to the testimony); United States v. Seifert,

648 F.2d 557, 561 (9th Cir. 1980) (issue is whether “answers to

particular questions would have *** undermined the govern-

ment’s case”) (citation omitted); Mayes v. Sowders, 621 F.2d 850,

854 (6th Cir. 1980) (although the witness was available for cross-

examination on some issues, the witness “could not be consid-

ered to be available for the kind of full and effective cross-

examination which would allow the prosecution to introduce

his out-of-court statements”); Fountain v. United States, 384 F.2d

624, 628 (5th Cir. 1968) (issue is “whether defendant’s inability

to make the inquiry created a substantial danger of prejudice by

depriving him of the ability to test the truth” of the evidence);

(United States v. Cardillo, 316 F.2d 606, 611 (2nd Cir. 1963) (distin-

guishing material limitation on cross-examination from limita-

tions relating to “collateral matters”).

25

The fact that the witness can be cross-examined on

some subjects is not enough!9; the issue is whether the

witness can be cross-examined on the constitutionally

material subjects. It is patently unconstitutional to admit

evidence against a defendant when the defense is pre-

vented from placing facts before the trier of fact “from

which bias, prejudice, or lack of credibility of a prosecu-

tion witness may be inferred.” United States v. LaRiche,

549 F.2d 1088, 1096 (6th Cir. 1977). This is precisely what

the State of Illinois has done to Carl Dixon.

CONCLUSION

For the reasons set forth above, petitioner respect-

fully requests that the Court grant this Petition for a Writ

of Certiorari.

Alternatively, in the event that the Court believes

that the violation of Carl Dixon’s right of confrontation is

so manifest that this case does not merit plenary consid-

eration, petitioner respectfully asks the Court to sum-

marily reverse the judgment below. It would be most

unjust to require Carl Dixon to wait several years in

10 Nor does the fact that the defendant had the opportunity

(and took the opportunity) to cross-examine the law enforce-

ment officer who took the statement from Carlisle satisfy the

demands of the Confrontation Clause. As this Court stated in

Douglas, the chance to cross-examine the person who took the

statement and inquire about the statement’s “genuiness could

not substitute for cross-examination of [the out-of-court declar-

ant] to test the truth of the statement itself.” 380 U.S. at 420.

26

prison, pending review on federal habeas corpus, pre-

cisely because the errors surrounding his conviction are

so obvious. Moreover, various proposed and current lim-

itations on habeas corpus relief make it imperative that

this Court use the mechanism of direct review to remedy

the egregious constitutional wrong that Carl Dixon has

suffered.

Respectfully submitted

LAWRENCE C. MARSHALL

Counsel of Record

357 East Chicago Ave.

Chicago, Illinois 60611

(312) 503-7412

JerFREY URDANGEN

343 S. Dearborn St., Ste. 1510

Chicago, Illinois 60604

(312) 939-0330

JULY 26, 1994

App. 1

FOURTH DIVISION

FILED: 11/18/93

No. 1-92-1075

THE PEOPLE OF

THE STATE OF ILLINOIS,

APPEAL FROM THE

CIRCUIT COURT OF

Plaintiff-Appellee, COOK COUNTY.

CARL DIXON, HONORABLE

EARL E. STRAYHORN,

Defendant-Appellant. PRESIDING.

)

)

)

)

Vv. )

)

)

)

)

)

JUSTICE JOHNSON delivered the opinion of the

court:

After a bench trial in the circuit court of Cook

County, defendant, Carl Dixon, was convicted of first

degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1(a), now

720 ILCS 5/9-1(a) (West 1992)), and sentenced to 20 years

of imprisonment in the Illinois Department of Correc-

tions.

On appeal, defendant contends (1) the trial court

erroneously admitted the prior inconsistent statement of

a State’s witness for substantive purposes when the state-

ment did not meet the requirements of section 115-10.1 of

the Code of Criminal Procedure (hereinafter the Code)

(Ill.Rev.Stat.1989, ch. 38, par. 115-10.1, now 725 ILCS

5/115-10.1 (West 1992)); (2) a witness’ assertion of his

fifth amendment right against self-incrimination in

response to questions pertaining to the prior inconsistent

statement denied him his right to confront witnesses

App. 2

against him; (3) he was not proved guilty beyond a rea-

sonable doubt; and (4) the trial court erroneously denied

both his motion for a directed verdict and his motion for

a new trial as the evidence was insufficient to prove him

guilty beyond a reasonable doubt.

We affirm.

The following pertinent facts were adduced at trial.

Officer Darryl Cavin testified that, on the morning of

May 12, 1990, he responded to a call regarding a shoot-

ing. Upon arriving at the scene, he observed a man lying

in the crosswalk of the street with his face down. Officer

Cavin stated that he questioned Christopher Carlisle, one

of the individuals at the scene. Carlisle told him that the

victim’s name was Patrick Marshall and that a man ran

up behind Patrick and fired three shots.

Ashadu McPherson, the victim’s cousin, testified that

on the night of May 11, 1990, he was with Patrick Mar-

shall, defendant, Omar Norman, and Christopher Carli-

sle. McPherson stated that defendant was showing the

group of men a black .9 millimeter gun which they passed

amongst themselves. As the gun was passed, Marshall

ran from the group apparently having taken defendant's

gun. Defendant then ran to his house and emerged with a

shotgun. He put the shotgun in the trunk of his car and

drove around with McPherson ana Norman looking for

Marshall whom he believed had taken his gun.

As they drove around, defendant told McPherson to

get his gun back. McPherson assured defendant that he

would get the gun back and then got out of the car. Later

that evening, McPherson met up with defendant again

App. 3

and observed a .22-caliber or a .25-caliber gun in defen-

dant’s lap. While they were in the car, defendant said,

“Tell Pat to give me my gun” and “If you don’t give me

my gun, I am going to have to do something to him.”

McPherson told defendant that he would get his gun back

and defendant then dropped off McPherson. McPherson

later called home and learned that Marshall had been

killed.

At trial, Christopher Carlisle, a friend of both defen-

dant and Patrick Marshall, testified that he was with

Marshall on May 12, 1990, but denied many of the facts

pertaining to the crime included in a statement he had

given to Assistant State’s Attorney David Studenroth

which directly implicated defendant in the killing. When

specifically asked about what he told Studenroth, Carlisle

exercised his fifth amendment right against self-incrimi-

nation. Carlisle was also shown a copy of the statement

and when asked whether the signature at the bottom was

his, he again asserted the fifth amendment. Defense coun-

sel chose not to cross-examine Carlisle.

The State then called Assistant State’s Attorney

Studenroth to the stand who testified that Carlisle gave a

three page statement to him regarding Marshall's killing.

Subsequent to making the statement, Studenroth

observed Carlisle read it and sign each page at the bot-

tom. The statement revealed that Carlisle saw defendant

walk toward Marshall with a gun in his hand. Defendant

then asked Marshall, “Where’s my shit at,” and Marshall

replied, “I'll get it to you man.” The statement further

indicated that Carlisle then saw defendant point a gun at

Marshall and fire several times. At the conclusion of this

testimony, defense counsel chose not to recall Carlisle.

App. 4

After argument in aggravation and mitigation, defen-

dant was convicted of first degree murder and sentenced

to 20 years in the Illinois Department of Corrections. The

trial court also sentenced defendant to a 7-year term of

imprisonment for violating his probation on a burglary

conviction to be served concurrently with the murder

sentence. Defendant appeals.

Initially, defendant maintains that the trial court

improperly admitted the prior inconsistent statement of

Christopher Carlisle as substantive evidence because the

statement did not meet the admissibility requirements of

section 115-10.1 of the Code. We do not agree.

Section 115-10.1 of the Code provides in pertinent

part:

“Admissibility of prior inconsistent state-

ments. In all criminal cases, evidence of a state-

ment made by a witness is not made

inadmissible by the hearsay rule if

(a) the statement is inconsistent with his

testimony at the hearing or trial, and

(b) the witness is subject to cross-examina-

tien concerning the statement, and

(c) the statement -

(1) was made under oath at a trial,

hearing or proceeding, or

(2) narrates, describes, or explains an

event or condition of which the witness had

personal knowledge, and

App. 5

(A) the statement is proved to

have been written or signed by the wit-

ness, * * * .” 725 ILCS 5/115-10.1 (West

1992).

For the reasons which follow, Carlisle’s statement was

properly admitted into evidence.

The first admissibility requirement is that the wit-

ness’ prior statement must be inconsistent with the testi-

mony he gives at trial. On direct examination, the

following colloquy occurred between the prosecutor and

Carlisle:

“Q. Did you see Carl Dixon get out of the car?

A No, I didn’t.

Q__ Did you see Carl Dixon walk up to Patrick?

A No, sir.

Q__Did you see Carl Dixon with a gun in his

hand?

A No, sir.

Q__Did you hear Car! Dixon say, ‘Where is my

shit at?’

A No, sir.

Q Did you hear Patrick respond, ‘I'll get it to

you, man.’?

A No, sir.

Q__ Did you see Carl Dixon point that gun at

Patrick and start firing several times at

Patrick?

A No, sir.

— ais — r

App. 6

Q Did you see Patrick run about a half block

and collapse?

A No, sir.”

At this point, the prosecutor showed Carlisle the

statement he gave to Assistant State’s Attorney

Studenroth on the day of the killing. Carlisle stated that

he recognized it to be a statement. When asked if it was

the statement he gave to the assistant State’s Attorney, he

replied, “I plead the fifth.” He was then asked if his

signature appeared at the bottom of the page and again

he invoked his fifth amendment privilege. The trial court

allowed him to utilize this privilege in each of these

instances.

The next day, the State called Assistant State’s Attor-

ney Studenroth to the stand who testified that he inter-

viewed Carlisle and took his statement. He stated that

after he wrote out the statement, he reviewed it with

Carlisle “word for word, page by page.” Carlisle then

signed his name at the bottom of each page as did

Studenroth and two police detectives.

After both sides were heard as to the admissibility of

Carlisle’s statement as a prior inconsistent statement

under section 115-10.1, the trial court stated, “I am going

to permit it[,] [o]n the basis that this statement is incon-

sistent with what he testified to yesterday[,] [w]hen these

questions were put to him specifically.” Therefore, only

the portions of Carlisle’s statement that directly contra-

dicted his previous testimony were allowed into evi-

dence.

The statement’s relevant contents revealed that Carli-

sle saw defendant get out of the car and walk toward the

q , ’

App. 7

victim. He saw defendant with a gun in his hand and

heard him ask Marshall, “Where’s my shit at?” He also

heard Marshall reply, “I'll get it to you man.” The state-

ment further reveals that Carlisle saw defendant point

the gun at Marshall and fire several times. It also indi-

cates that, after the shooting, Carlisle and the victim

began to run. Finally, it states that Carlisle observed the —

victim collapse after running about '/2 block.

Defendant now argues that Carlisle’s out-of-court

statement could not have been inconsistent with his testi-

mony at trial because he invoked his fifth amendment

privilege. We disagree.

Defendant was not able to invoke his fifth amend-

ment privilege in all instances and did testify substan-

tively as to his knowledge of the events surrounding the

killing of Patrick Marshall. As previously established,

Carlisle responded to substantive questions posed by the

prosecutor effectively denying the information he gave to

Assistant State’s Attorney Studenroth. Clearly, the por-

tions of Carlisle’s statement were in direct contradiction

to his testimony at trial and are, therefore, inconsistent.

Defendant urges us to liken this case to People v.

Redd (1990), 135 Ill. 2d 252, when the two are in fact

incongruous. In Redd, the witness in question suc-

cessfully invoked the fifth amendment privilege through-

out his entire testimony and failed to answer any

questions. The trial court then permitted the introduction

of the witness’ prior testimony reasoning, “I interpreted

[section 115-10.1] to mean that when someone takes the

fifth amendment, that is the same as being inconsistent

with his testimony at the hearing or trial or in fact as to

App. &

the Grand Jury.” (Redd, 135 Ill. 2d at 302.) Our supreme

court concluded that since the witness did not testify, “it

was error to allow him to be impeached by prior state

ments allegedly made by him * * * .” Redd, 135 Hl. 2d at

317.

Our situation here is dissimilar. Carlisle repeatedly

tried to invoke the fifth amendment privilege and the

trial court determined, instance by instance, whether he

had a valid privilege to invoke. Thus, Carlisle was

allowed to take the fifth as to some questions but not as

to others. Consequently, unlike Redd and as previously

illustrated, he did provide substantive testimony and

specific answers to questions posed to him at trial.

We believe portions of Carlisle’s statement were

properly admitted as substantive evidence because they

were in direct contradiction to his prior testimony and

inconsistent in accordance with section 115-10.1 of the

Code of Criminal Procedure.

The second element of section 115.10.1 requires that

the witness must be available for cross-examination con-

cerning his prior statement. This requirement was

unequivocally satisfied. At the conclusion of Carlisle’s

direct examination testimony, the trial court inquired as

to whether defense counsel wanted to cross-examine Car-

lisle. Defense counsel responded, “ No cross, your

Honor.” Defense counsel, then, had the full opportunity

to cross-examine Carlisle who was readily available. This

is all section 115-10.1 mandates.

Defendant argues that, because Carlisle invoked his

fifth amendment privilege on direct examination, he

App. 9

would have been unavailable to testify on cross-examina-

tion. As previously elucidated, Carlisle did testify sub-

stantively at trial and defense counsel decided not to

cross-examine him presumably because his testimony

was favorable to defendant.

This contention further assumes that Carlisle would

have asserted his fifth amendment privilege when cross-

examined by defense counsel. This, of course, is specula-

tion. Defendant cannot claim a lack of opportunity to

cross-examine Carlisle when he did not even attempt to

call Carlisle to the stand.

We also reject defendant's assertion that he could not

effectively- cross-examine Carlisle or challenge the truth

of his statement because Carlisle was not on the stand

when the statement was admitted into evidence. After

Carlisle’s prior statement was introduced by Assistant

State’s Attorney Studenroth, defense counsel specifically

asked the trial court if he could recall Carlisle as a rebut-

tal witness. The trial court granted this request. If neces-

sary, then, defense counsel had the option of recalling

Carlisle to rebut the assistant State’s Attorney’s testi-

mony. Carlisle was thus available to be cross-examined

within the meaning of section 115-10.1.

Third, the witness’ statement must have been signed

by him and must narrate an event within his personal

knowledge. Assistant State’s Attorney Studenroth testi-

fied that he took Carlisle’s statement, and saw him read

and sign each page of it. At trial, Studenroth identified

the statement as the one which he had written and seen

Carlisle sign. We believe that, although Carlisle took the

fifth when he was shown the statement and asked if it

x

Pate wa

a a eel denoasiidiitedl

App. 10

was his, the testimony of Studenroth is sufficient proof

that the statement was made and signed by Carlisle. As

the final requirement of section 115-10.1 was satisfied, the

trial court did not err in admitting Carlisle’s prior incon-

sistent statement into evidence.

Next, defendant submits that Carlisle’s invocation of

his fifth amendment privilege against self-incrimination,

when asked about the prior inconsistent statement, made

him unavailable for cross-examination violating the Con-

frontation Clause of the sixth amendment. In view of our

previous discussion, this issue fails to warrant much

attention.

‘

“The Confrontation Clause guarantees only ‘an

opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to

whatever extent, the defense might wish.’” (United

States v. Owens (1988), 484 U.S. 554, 559, 98 L. Ed. 2d 951,

957-58; 108 S. Ct. 838, 842; see People v. Flores (1989), 128

Ill. 2d 66.) As defendant had the opportunity to cross-

examine Carlisle, his right to confront witnesses was not

violated.

Next, defendant contends that he was not proved

guilty beyond a reasonable doubt. “[T]he relevant ques-

tion is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of

fact would have found the essential elements of the crime

beyond a reasonable doubt.” (Jackson v. Virginia (1979),

443 U.S. 307, 318, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781,

2788; see People v. Young (1989), 128 Ill. 2d 1.) We believe,

based on the evidence presented in the light most favor-

able to the prosecution, that a rational trier of fact could

App. 11

have found defendant guilty of first degree murder

beyond a reasonable doubt.

Finally, defendant opines that the trial court erro-

neously denied both his motion for a directed verdict and

his motion for a new trial. In furtherance of this position,

defendant points solely to the trial court’s improper

admission of Carlisle’s prior inconsistent statement as

substantive evidence. We have already determined that

the statement was properly admitted.

In ruling on a motion for a directed verdict, “the trial

court need consider only whether a reasonable mind

could fairly conclude beyond a reasonable doubt the

defendant is guilty, considering the evidence most

strongly in the People’s favor.” (People v. Huffman

(1988), 177 Ill. App. 3d 713, 722-23.) We believe applica-

tion of the above standard to this case supports the trial

court’s denial of defendant’s motion for a directed ver-

dict.

The appropriate standard of review for the denial of

a motion for a new trial is as follows:

“The decision of a trial court to grant a new trial

is an exercise of discretion which should not be

disturbed unless a clear abuse of that discretion

is shown. [Citations.] In determining whether

that discretion was abused, the reviewing court

will consider whether the jury’s verdict was

supported by the evidence and whether the los-

ing party was denied a fair trial.” Reidelberger

v. Highland Body Shop, Inc. (1981), 83 Ill. 2d

545, 548-49.

App. 12

Based on our thorough review of the record, we do not

believe the trial court abused its discretion in denying

defendant’s motion for a new trial.

For the aforementioned reasons, the judgment of the

circuit court of Cook County is affirmed.

Affirmed.

CAHILL, P.J., and HOFFMAN, J., concur.

App. 13

SUPREME COURT OF ILLINOIS

WEDNESDAY, APRIL 6, 1994

THE FOLLOWING CASES ON THE LEAVE TO APPEAL

DOCKET ARE DISPOSED OF AS INDICATED:

No. 76732 — People State of Illinois, respondent, v. Carl

Dixon, petitioner. Leave to appeal, Appel-

late Court, First District. (1-92-1075)

Petition for leave to appeal denied.

App. 14

Supreme Court of the United States

No.

A-1079

Carl Dixon,

Petitioner

vV.

Illinois

ORDER

UPON CONSIDERATION of the application of coun-

sel for the petitioner,

IT IS ORDERED that the time for filing a petition for

a writ of certiorari in the above-entitled case, be and the

same is hereby, extended to and including

July 26, 1994.

/s/ John Paul Stevens

Associate Justice of the Supreme

Court of the United States

Dated this 24th

day of June, 1994.

App. 15

ORDER

IN THE APPELLATE COURT, STATE OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE

STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

C._..L DIXON,

)

)

)

) NO. 1-92-1075

)

)

)

Defendant-Appellant. )

ORDER

This cause coming on to be heard on Petition for

Rehearing, and the Court now being fully advised in the

premises:

IT IS ORDERED that said Petition for Rehearing be

and the same is hereby denied.

DATED: December 16, 1993

Name /s Glenn T. Johnson

Justice

Attorney for /s Robert Cahill

Justice

Aan /s Thomas E. Hoffman

City Justice

Telephone

GILBERT S. MARCHMAN, CLERK OF THE APPELLATE

COURT, FIRST DISTRICT