No. 2--04--0048
| THE PEOPLE OF THE STATE OF | ) | Appeal from the Circuit Court |
| ILLINOIS, | ) | of Lake County. |
| ) | ||
| Plaintiff-Appellee, | ) | |
| ) | ||
| v. | ) | No. 02--CF--4156 |
| ) | ||
| DANIEL BUENO, | ) | Honorable |
| ) | James K. Booras, | |
| Defendant-Appellant. | ) | Judge, Presiding. |
JUSTICE GROMETER delivered the opinion of the court:
Defendant, Daniel Bueno, was charged by indictment with two counts of aggravateddischarge of a firearm within 1,000 feet of real property comprising a school (720 ILCS 5/24--1.2(a)(1), (b) (West 2002)), two counts of aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(1) (West 2002)), and one count of aggravated unlawful use of a weapon (720 ILCS 5/24--1.6(a)(1), (a)(3)(A) (West 2002)). Following a bench trial in the circuit court of Lake County,defendant was convicted of aggravated unlawful use of a weapon and one count each of aggravateddischarge of a firearm within 1,000 feet of real property comprising a school and aggravateddischarge of a firearm. The trial court sentenced defendant to 16 years' imprisonment on theconviction of aggravated discharge of a firearm within 1,000 feet of real property comprising a schooland 15 years' imprisonment on the conviction of aggravated discharge of a firearm. The courtordered the sentences to run concurrently. The court did not enter judgment on or sentencedefendant for the aggravated unlawful use of a weapon conviction. On appeal, defendant raises twoarguments. First, defendant contends that the trial court erred in admitting as substantive evidencea statement made by Sergio Ruiz, one of the State's witnesses. Second, defendant asserts that theState failed to prove him guilty beyond a reasonable doubt of aggravated discharge of a firearm. Forthe reasons that follow, we vacate defendant's conviction of and sentence for aggravated dischargeof a firearm and we modify the mittimus, but we otherwise affirm the decision of the trial court.
I. BACKGROUND
The charges against defendant arose out of a drive-by shooting that occurred the evening ofSeptember 25, 2002, when shots were fired at a residence located at 502 North Butrick in Waukeganand at a vehicle parked in a driveway at 506 North Butrick. At approximately 9:30 p.m., theWaukegan police department received a report of the shooting. Officer Alias Agalianos testified that,when he arrived about one minute later, at least six people were in the home at 502 North Butrick.After speaking with some witnesses, Agalianos searched the area. He found two spent shell casingsin the middle of the street. Agalianos examined the house for damage and observed two bullet holes. In addition, Agalianos observed that a truck parked in the driveway at 506 North Butrick had onebullet hole in the tailgate and another in the rear driver-side tire.
Officer Michael Mandro, an evidence technician with the Waukegan police department,testified that two shell casings and four projectiles were recovered from the scene. Mandrodetermined that the shell casings were from a .38-caliber Winchester. Two of the projectiles werefound at 502 North Butrick. According to Mandro, these two projectiles passed through the frontdoor of the residence. One of the projectiles was found lodged in an interior doorway, and the otherwas found resting on a windowsill.
Sergio Ruiz testified that he was serving a three-year sentence in the Illinois Department ofCorrections for unlawful sale of a firearm. In October 2002, Sergio, then 17 years old, and anacquaintance were arrested by the Waukegan police department on a charge unrelated to this case. At that time, Sergio gave two written statements to the police regarding the September 25, 2002,shooting. The first statement was given on October 22, 2002, at 9 p.m. The second statement wasgiven on October 23, 2002, at 6 p.m. Both statements were typed by Sergeant Cappelutti andwitnessed by Cappelutti and Detective Charles Schletz.
Sergio testified that after being informed of his Miranda rights, he gave police a verbalstatement. The officers asked Sergio to reduce the statement to writing. Sergio indicated that he didnot want to write out a statement, so Cappelutti typed the statement for him. Sergio reviewed thetyped statement and signed it. Sergio identified People's exhibit 34 as the first statement he gave topolice. In this statement, Sergio told the police that he is a junior member of the Latin Kings and thathe holds guns for them. Sergio also stated that Juan Vargas was the person who fired shots at 502North Butrick and that Sergio had supplied Vargas with the gun used in the shooting. After theshooting, Vargas returned the weapon to Sergio.
In his second statement, Sergio stated that it was not Juan Vargas who fired the shots at 502North Butrick but, rather, an individual named "Baqweek." Sergio further stated that, the day afterthe shooting, "Baqweek" told him that he fired four shots at the residence while riding in a blackLincoln with "Emmanuel" and "Smokey." Sergio told police that he was familiar with the weaponused in the shooting, a ".380," and that the gun always jammed after the third or fourth shot. Sergiostated that "Baqweek" told him that the gun jammed on the night of the shooting. The secondstatement was marked as People's exhibit 35.
When asked at defendant's trial about the specifics of his first statement, Sergio stated thathe did not wish to answer any more questions. The trial court ordered Sergio to respond, but he stillrefused. The court then held Sergio in direct contempt of court and delayed any further questioningof Sergio until he consulted with his attorney. After speaking with his attorney, Sergio again tookthe witness stand. Sergio denied making certain statements to police and refused to testify anyfurther. The trial court then gave defendant's attorney the opportunity to cross-examine Sergio. Oncross-examination, Sergio admitted that he signed the first statement. He then reviewed the statementand testified that parts of the statement were his, but that he could not recall which ones. Defensecounsel stated that he had "nothing further." The State then submitted that Sergio was "refusing totestify both to the State and the questioning of the defense." Thereafter, the trial court found Sergioin contempt of court and sentenced him to six months' imprisonment.
The State then moved to admit People's exhibits 34 and 35 as substantive evidence pursuantto sections 115--10.1 and 115--10.2 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS5/115--10.1 (West 2002); 725 ILCS 5/115--10.2 (West Supp. 2003)). Defendant objected to theadmission of the statements. The trial judge concluded that the statements were admissible underboth sections. People's exhibit 36, a photo lineup in which Sergio identified defendant as "Baqweek,"was also admitted into evidence.
Maria Ruiz, Sergio's mother, identified defendant by the name "Baqweek" or "Baquick." Maria testified that, at some point during 2002, she found a gun in her house. After Maria found thegun, "Baqweek" came to her house, and she gave the gun to him. "Baqweek" told Maria that the gunbelonged to his friend and that he would return it to him. Maria cautioned "Baqweek" not to playwith guns and warned him that the next time that she saw a weapon in her home she would call thepolice.
Emmanuel Gomez testified that he is on juvenile probation in relation to the September 25,2002, shooting. Late in October 2002, Gomez gave the police a written statement. In the statement,Gomez acknowledged driving the car from which the shots were fired. Specifically, Gomez statedthat he drove a dark-colored Lincoln with the headlights off past a residence at 502 North Butrickand that a passenger in the car fired shots at the home because a rival gang member lived there. Gomez identified the shooter as "Juan." He told the police that Juan shot at the house four timesbefore the gun jammed. Gomez did not reference defendant's given name in his written statement topolice. However, he did tell police that an individual nicknamed "Quick" was one of the passengersin his car on the night of the shooting. At defendant's trial, Gomez testified that Quick's given nameis Ignacio and that Quick is a friend of Sergio Ruiz.
On November 8, 2002, Gomez entered a guilty plea in juvenile court. The transcript fromGomez's juvenile court proceeding was admitted as substantive evidence. Defense counsel did notobject, stating that the transcript "meets the requirements of the statute." At the proceeding, Gomezidentified "Daniel Bueno" as the individual who fired the shots from his car on September 25, 2002. Gomez told the juvenile court judge that he knew that defendant had a weapon. Gomez also told thejudge that he pulled up to 502 North Butrick and turned off his headlights, knowing that defendantwas going to discharge the weapon. At defendant's trial, however, Gomez testified that he had nevermet defendant. Gomez testified that he lied to the juvenile court judge when he identified defendantas the shooter. Gomez testified that, while in custody at the juvenile detention center, he learnedabout defendant from reading statements written by other individuals involved in the shooting. However, when presented with the statements he read from these individuals, Gomez admitted thatnone of them reference defendant's given name.
On cross-examination, Gomez reiterated that defendant was not in his car on September 25,2002. Moreover, Gomez denied that he was the individual who drove the car involved in theshooting. Gomez also denied that any of the nicknames referenced in his written statement to thepolice belonged to defendant. Gomez stated that at the November 8, 2002, juvenile courtproceeding, no one showed him a picture of defendant to confirm or deny that he was the shooter. Gomez also testified that he withdrew the guilty plea he entered on November 8, 2002, because he"knew that no Daniel Bueno was involved in that shooting." Later, Gomez again pleaded guilty injuvenile court, allegedly without implicating defendant in the shooting. On redirect, Gomezacknowledged that after he withdrew his plea, he reentered a plea of guilty before a different judge,based on the same facts as the previous plea.
Detective Schletz identified People's exhibit 34 as the first written statement obtained fromSergio Ruiz in relation to the shooting on September 25, 2002. Schletz testified that the statementwas signed by Sergio and witnessed by Schletz and Sergeant Cappelluti. Schletz testified that thepersons that he initially spoke to about the September 25, 2002, shooting all indicated that a JuanAntonio Vargas was the triggerman. After learning that Vargas was locked up in a juvenile detentioncenter at the time of the shooting, Schletz spoke to Sergio again. Schletz identified People's exhibit35 as the second written statement obtained from Sergio. The second statement was also signed bySergio, Schletz, and Cappelluti.
Schletz admitted that none of the individuals who gave statements identified defendant by hisgiven name. Instead, defendant was identified as "Baqweek," "Baquick," "Quick," "Palatine," or"Juan Antonio's cousin from Palatine." Schletz identified People's exhibit 36 as a photo lineup thatwas shown to Sergio. Sergio identified defendant as an individual nicknamed "Baquick" or"Baqweek." Finally, Schletz testified that, using a walking meter, he determined that the distancefrom the place where the shooting occurred to school property was 701 feet.
Officer Andy Ulloa of the Waukegan police department testified that, on October 22, 2002, he interviewed Gomez regarding the September 25, 2002, shooting. During the interview, Ulloanever mentioned defendant's given name. Gomez gave police a written statement in Spanish, whichUlloa identified as People's exhibit 26. Ulloa testified that in the statement, Gomez identified JuanVargas as the shooter. Gomez also stated that an individual named "Quick" was in the vehicle at thetime of the shooting. Ulloa identified defendant as the individual nicknamed "Baqweek."
After the State rested, defendant moved for a directed finding. The trial court denieddefendant's request. Defendant then called two of his sisters as alibi witnesses.
Maria Bueno (Bueno) testified that she and her family, including defendant, spent the eveningof September 25, 2002, celebrating the birthday of her sister, Carolina Estanislao. AlthoughEstanislao's birthday was September 20, the family decided to celebrate the occasion on September25 because Estanislao and her husband had planned a private celebration for Estanislao's actualbirthday. Bueno testified that the family dined at a Chinese buffet in Bloomingdale. The restaurant,located about 60 to 90 minutes from Waukegan, is close to Bueno's home in Hanover Park. Buenotestified that she, her former spouse, and their children arrived at the buffet between 7:15 and 7:30p.m. Defendant drove with them. Bueno estimated that the group left the restaurant shortly after 9p.m. At that time, defendant drove with Bueno and her family to her Hanover Park home, arrivingat about 9:30 p.m. Members of the extended family also returned to Bueno's home. The family,including defendant, stayed up until about 11 p.m. Bueno testified that when she awoke the nextmorning, defendant was still at her home.
Bueno stated that she did not find out that her brother had been implicated in the September25, 2002, shooting until after he started going to court in September 2003. She admitted, however,that when she did find out about the charges against her brother, she did not report his whereaboutsthe evening of September 25 to law enforcement authorities because she "didn't know that we weresupposed to say anything if he was with us" and because she did not believe that it would do anygood at that point. Bueno testified that the family did not take any photographs at the dinner and thatshe did not have a receipt from the restaurant because the family paid with cash.
Estanislao's testimony mirrored Bueno's in most respects. Estanislao added that she was livingat Bueno's house at the time of the birthday celebration. Estanislao testified that she alloweddefendant to sleep in her bedroom on the night of September 25, 2002, and that defendant went tosleep before her. When Estanislao awoke the next morning, defendant was still in bed. On cross-examination, Estanislao testified that when she found out that her brother was in trouble, she did notcontact any law enforcement agents to tell them that defendant was with her on the evening ofSeptember 25, 2002, because she "didn't think [she] had to because [she] was coming to court."
Following Estanislao's testimony, defendant rested. The trial court found defendant guilty ofone count of aggravated discharge of a firearm, one count of aggravated discharge of a firearm within1,000 feet of real property comprising a school, and one count of aggravated unlawful use of aweapon. The trial court sentenced defendant to 16 years' imprisonment on the conviction ofaggravated discharge of a firearm within 1,000 feet of a school and 15 years' imprisonment on theconviction of aggravated discharge of a firearm. The sentences were ordered to run concurrently. The trial court did not enter judgment on or impose sentence for the aggravated unlawful use of aweapon conviction. Defendant's posttrial motion was denied. This timely appeal ensued.
II. ANALYSIS
On appeal, defendant first argues that the trial court erred in admitting as substantive evidencethe second statement that Sergio Ruiz gave to the police. The trial court determined that thisstatement was admissible under both section 115--10.1 and section 115--10.2 of the Code (725 ILCS5/115--10.1 (West 2002); 725 ILCS 5/115--10.2 (West Supp. 2003)). Defendant challenges theadmissibility of Sergio's second statement on three separate grounds. First, defendant contends thatSergio's second statement was inadmissible under Crawford v. Washington, 541 U.S. 36, 158 L. Ed.2d 177, 124 S. Ct. 1354 (2004). Second, defendant asserts that Sergio's second statement wasinadmissible under section 115--10.1 of the Code because Sergio never acknowledged at trial thathe made the statement. Third, defendant contends that the statement was inadmissible under section115--10.2 of the Code because it lacked "circumstantial guarantees of trustworthiness." The Statedisputes the application of Crawford to the facts of this case. In addition, while the Stateacknowledges that Sergio's second statement was admitted under both section 115--10.1 and section115--10.2 of the Code (725 ILCS 5/115--10.1 (West 2002); 725 ILCS 5/115--10.2 (West Supp.2003)), it argues that section 115--10.1 "is more applicable." The State asserts that section 115--10.2does not apply because "it is limited by its own language to situations where the statement is notspecifically covered by another hearsay exception" and Sergio's second statement is admissible undersection 115--10.1. We begin our discussion with Crawford.(1)
A. Crawford
To be admissible, a prior out-of-court statement must not only comply with statutoryrequirements but also satisfy the confrontation clause. People v. Martinez, 348 Ill. App. 3d 521, 535(2004); People v. Patterson, 347 Ill. App. 3d 1044, 1050 (2004). The sixth amendment'sconfrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ***to be confronted with the witnesses against him." U.S. Const., amend. VI. In Ohio v. Roberts, 448U.S. 56, 65-66, 65 L. Ed. 2d 597, 607-08, 100 S. Ct. 2531, 2538-39 (1980), the Supreme Courtdeveloped a " 'general approach' for determining when incriminating statements admissible under anexception to the hearsay rule also meet the requirements of the Confrontation Clause." Idaho v.Wright, 497 U.S. 805, 814, 111 L. Ed. 2d 638, 651, 110 S. Ct. 3139, 3146 (1990). First, the Courtstated that the declarant must be unavailable to testify at trial. Roberts, 448 U.S. at 65, 65 L. Ed. 2dat 607, 100 S. Ct. at 2538. Once the witness's unavailability is established, the statement of theunavailable witness will be admitted against a criminal defendant only if the statement bears "adequate'indicia of reliability.' " Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539. TheSupreme Court stated that reliability can be inferred where the evidence falls under a firmly rootedhearsay exception. Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539. Evidence notfalling under a firmly rooted hearsay exception is admissible only if the party proffering the evidencedemonstrates that the evidence possesses "particularized guarantees of trustworthiness." Roberts,448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.
Recently, however, in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct.1354 (2004), the Supreme Court altered the "adequate indicia of reliability" framework developedin Roberts. People v. Gilmore, No. 2--03--1105, slip op. at 11 (March 30, 2005). The CrawfordCourt differentiated between "testimonial" and "nontestimonial" hearsay. Crawford, 541 U.S. at ___,158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The Court held that a "testimonial" statement of a witnesswho is absent from trial is admissible only where the declarant is unavailable and the defendant hashad a prior opportunity for cross-examination. Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 197, 124S. Ct. at 1369. Although the Supreme Court declined to provide a comprehensive definition of"testimonial," it did note that it applies to "police interrogations." Crawford, 541 U.S. at ___, 158L. Ed. 2d at 203, 124 S. Ct. at 1374; see also Gilmore, slip op. at 11 (noting that statements madeto police are "testimonial"). Thus, under Crawford, Sergio's second statement to police undoubtedlywas testimonial. The Supreme Court stressed, however, that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his priortestimonial statements." Crawford, 541 U.S. at ___ n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369n.9. As a threshold matter, then, we must determine whether Sergio "appear[ed] for cross-examination" within the context of Crawford. People v. Sharp, 355 Ill. App. 3d 786, 792 (2005), arecent case from the Fourth District, is instructive on this matter.
In Sharp, the defendant was charged with predatory criminal sexual assault. Following ahearing pursuant to section 115--10 of the Code (725 ILCS 5/115--10 (West 2000)), the trial courtallowed into evidence hearsay statements that the victim had made to her mother and to the directorof a children's advocacy center. The victim testified at the defendant's trial, but did not respond ondirect examination to questions about the details of the actual offense. On cross-examination, defensecounsel asked general questions regarding the victim's activities on the day of the alleged assault aswell as questions about the room where the assault allegedly took place. However, defense counseldid not to ask the victim any questions about what happened to her in the room where the assaultallegedly took place. A jury ultimately convicted the defendant of the charged offense. On appeal,the defendant argued that the hearsay statements were admitted in violation of the confrontationclause.
In its decision, the Sharp court discussed what it means to "appear for cross-examination" forpurposes of the confrontation clause. The Sharp court noted that although the Supreme Court didnot explain in Crawford what it meant for a declarant to "appear for cross-examination," the Courtneither overruled nor called into question two earlier decisions that addressed this issue. In the firstcase, Delaware v. Fensterer, 474 U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985) (per curiam), theCourt stated that the confrontation clause guarantees " 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, thedefense might wish.' " (Emphasis in original.) Sharp, 355 Ill. App. 3d at 793, quoting Fensterer, 474U.S. at 20, 88 L. Ed. 2d at 19, 106 S. Ct. at 294. In the second case, United States v. Owens, 484U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838 (1988), the Court held that the confrontation clause isnot violated by the admission of an identification statement of a witness who is unable to testifybecause of memory loss. In so holding, the Court stated that " '[o]rdinarily, a witness is regarded as"subject to cross-examination" when he is placed on the stand, under oath, and responds willingly toquestions.' " (Emphasis omitted.) Sharp, 355 Ill. App. 3d at 794, quoting Owens, 484 U.S. at 561,98 L. Ed. 2d at 959, 108 S. Ct. at 844. The Sharp court pointed out that our supreme court adoptedthe analyses of Fensterer and Owens in People v. Flores, 128 Ill. 2d 66 (1989).
Based on the aforementioned case law, the Sharp court concluded that the victim "appeared"for cross-examination at the defendant's trial. The Sharp court observed that the victim did testifyregarding the events leading to and following the alleged crime. Sharp, 355 Ill. App. 3d at 795. More importantly, the Sharp court held that the key inquiry is whether a declarant of a hearsaystatement was present for cross-examination and answered questions asked of her by defense counsel. Sharp, 355 Ill. App. 3d at 795. In Sharp, not only was the victim present at the defendant's trial, butshe answered all of the questions posed to her by defense counsel on cross-examination. Thus, thevictim "appeared" for cross-examination at the defendant's trial and the confrontation clause did notbar the admission of the victim's hearsay statements at the defendant's trial. Courts in otherjurisdictions have reached similar conclusions. See, e.g., State v. Carothers, 692 N.W.2d 544, 549(S.D. 2005) (concluding that testimonial statements need not be subject to cross-examination at thetime they were made if the witness is available and subject to cross-examination at trial); State v.Gorman, 854 A.2d 1164, 1178 (Me. 2004) (holding that the confrontation clause was not violatedby the admission of the witness's hearsay testimony where the defendant was given the opportunityto cross-examine the witness at his trial); State v. Tate, 682 N.W.2d 169, 176 n.1 (Minn. App. 2004)(holding that Crawford is not implicated where the declarant of hearsay statement was present at trialand subject to cross-examination); Crawford v. State, 139 S.W.3d 462, 464-65 (Tex. App. 2004)(noting that Crawford does not bar admission of witness's hearsay statement where the witnesstestified at the defendant's trial); People v. Perez, 82 Cal. App. 4th 760, 766, 98 Cal. Rptr. 2d 522,526 (2000) (holding that the admission of witness's prior statement did not violate the defendants'right to confront witness against them despite witness's professed inability to recall the crime or herstatements to police; although witness's stance narrowed scope of the defendants' cross-examination,the jury was still able to assess witness's demeanor and credibility); cf. People v. Rios, 163 Cal. App.3d 852, 864, 210 Cal. Rptr. 271, 279 (1985) (holding that the admission of a hearsay statement ofa witness who refuses to answer any question on direct or cross denies the defendant a meaningfulopportunity to cross-examine the witness).
In this case, Sergio gave multiple statements to the police, implicating different individuals. The State called Sergio at defendant's trial. Sergio testified that he was incarcerated, that he spoketo the police, that the police informed him of his Miranda rights, and that he "gave some statements"concerning the September 25, 2002, shooting. In addition, Sergio acknowledged providing policewith a verbal statement, which the police reduced to writing. He then identified People's exhibit 34as the first statement he gave to police. When questioned about the specifics of the first statement,Sergio indicated that he could not remember and then refused to testify any further. Sergio persistedin refusing to testify, despite a trial court order that he respond to the State's inquiries. At that point,the court found Sergio in direct contempt of court and delayed any further questioning until Sergiohad a chance to consult with his attorney. The State recalled Sergio after he spoke with his attorney. Sergio denied making certain statements to police and then refused to testify any further. However,the trial court made Sergio available to defense counsel for cross-examination. On cross-examination,Sergio admitted that he signed the first statement. He then reviewed the statement and testified thatparts of the statement were his, but that he could not recall which ones. Defense counsel then statedthat he had "nothing further." Like the victim in Sharp, Sergio was present for cross-examination andhe answered all of the questions asked of him by defense counsel. Thus, Sergio "appeared" for cross-examination at defendant's trial and the admission of Sergio's second hearsay statement did not implicate Crawford or the confrontation clause.
Defendant claims, however, that Sergio was "unavailable" for cross-examination regardinghis second statement because direct examination regarding this statement was never attempted. Defendant further asserts that any attempt to cross-examine Sergio regarding the second statementwould have been beyond the scope of direct. We disagree. The trial court has wide latitude indetermining the permissible scope of cross-examination. People v. Kegley, 227 Ill. App. 3d 48, 54(1992). This is not a case in which the hearsay declarant refused to testify about anything. Here, ondirect examination, Sergio acknowledged that he "gave some statements" to police regarding theSeptember 25, 2002, shooting. Since Sergio admitted that he gave the police more than onestatement, we cannot agree with the proposition that an attempt by defense counsel to questionSergio regarding the second statement would have been considered beyond the scope of direct. Moreover, the Sharp court implicitly rejected an argument similar to that made by defendant in thiscase. As discussed above, in Sharp, the court upheld the admission of the victim's hearsay statementdespite the fact that the State was rebuffed in its attempt to question the victim regarding thecircumstances of the actual offense, because the victim answered all of defense counsel's questionson cross-examination. Sharp, 355 Ill. App. 3d at 795. In this case, Sergio answered all of defensecounsel's questions on cross-examination. Because Sergio "appear[ed] for cross-examination" underCrawford, the confrontation clause places "no constraints at all on the use of his prior testimonialstatements." Crawford, 541 U.S. at ___ n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9. Having determined that Crawford does not bar the admission of Sergio's hearsay statements, we turnto whether the statements are admissible under either of the two statutes identified by the trial court.
B. Section 115--10.1
Generally, a party may use a prior inconsistent statement only for purposes of impeachment. People v. Morgason, 311 Ill. App. 3d 1005, 1010 (2000). However, section 115--10.1 of the Code(725 ILCS 5/115--10.1 (West 2002)) allows the admission of a witness's prior inconsistent statementas substantive evidence under certain circumstances. Morgason, 311 Ill. App. 3d at 1010. Section115--10.1 provides in relevant part:
"In all criminal cases, evidence of a statement made by a witness is not madeinadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement--
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witnesshad personal knowledge, and
(A) the statement is proved to have been written or signed by thewitness, or
(B) the witness acknowledged under oath the making of the statementeither in his testimony at the hearing or trial in which the admission intoevidence of the prior statement is being sought, or at a trial, hearing, or otherproceeding, or
(C) the statement is proved to have been accurately recorded by a taperecorder, videotape recording, or any other similar electronic means of soundrecording." 725 ILCS 5/115--10.1 (West 2002).
As noted above, defendant argues that Sergio's second statement was inadmissible under section 115--10.1 of the Code because Sergio never acknowledged at trial that he made the statement.(2) The Stateinsists that Sergio's second statement was properly admitted under this statutory provision becauseSergio's second statement was inconsistent with his testimony at trial, Sergio was subject to cross-examination, and Sergio signed the second statement.
To be admissible under section 115--10.1, a statement must be inconsistent with the witness'stestimony at trial, the witness must be subject to cross-examination, and the statement must either:(1) have been made under oath at a trial, hearing, or other proceeding; or (2) narrate, describe, orexplain an event or condition of which the witness had personal knowledge, and meet at least one ofthree other requirements. We conclude that Sergio's second statement is inadmissible under section115--10.1 because it neither was made under oath at a trial, hearing, or other proceeding nor doesit narrate, describe, or explain an event or condition of which Sergio had "personal knowledge."
Sergio's second statement was made to police after he was apprehended on a charge unrelatedto the September 25, 2002, shooting. Thus, it was clearly not made "under oath at a trial, hearing,or other proceeding." Moreover, Sergio's second statement did not narrate, describe, or explain anevent or condition of which Sergio had "personal knowledge."
For a witness to have personal knowledge, the witness must have observed, and not merelyheard, the subject matter underlying the statement. Morgason, 311 Ill. App. 3d at 1011 (noting that"personal knowledge" excludes statements, including admissions, made to the witness by a thirdparty, where the witness has no firsthand knowledge of the event that is the subject of the statementsmade by the third party); People v. Fields, 285 Ill. App. 3d 1020, 1028 (1996) (holding that it wasimproper to admit witness's statement regarding the defendant's confession because "[t]he personalknowledge requirement limits the use of out-of-court statements to those events the witness actuallyobserved"); People v. Morales, 281 Ill. App. 3d 695, 700 (1996) (holding that the personal-knowledge requirement is not satisfied when the witness merely testifies as to what another claimsto have done); People v. Williams, 264 Ill. App. 3d 278, 290 (1993); People v. Saunders, 220 Ill.App. 3d 647, 658 (1991) (holding that only those portions of statement within personal knowledgeof declarant were admissible as substantive evidence under section 115--10.1); People v. Hastings,161 Ill. App. 3d 714, 720 (1987). The rationale for requiring a witness to personally observe theevents that are the subject matter of his or her comments is that a witness is less likely to repeatanother's statement if he or she witnessed the event and knows that the statement is untrue. Morales,281 Ill. App. 3d at 701. In the present case, Sergio's second statement consisted of Sergio'sallegation that defendant used a ".380" in the shooting and that defendant admitted that he was thetriggerman on September 25, 2002. However, Sergio did not state that he supplied the shooter withthe gun or that he personally observed the shooting. Thus, Sergio's second statement does notnarrate, describe, or explain an event or condition of which Sergio had personal knowledge, and itis inadmissible under section 115--10.1.
C. Section 115--10.2
The trial court, however, also concluded that Sergio's second statement was admissible undersection 115--10.2 of the Code (725 ILCS 5/115--10.2 (West Supp. 2003)). Often referred to as the"residual hearsay statute," section 115--10.2 provides in relevant part:
"(a) A statement not specifically covered by any other hearsay exception but havingequivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay ruleif the declarant is unavailable as defined in subsection (c) and if the court determines that:
(1) the statement is offered as evidence of a material fact; and
(2) the statement is more probative on the point for which it is offered thanany other evidence which the proponent can procure through reasonable efforts; and
(3) the general purposes of this Section and the interests of justice will bestbe served by admission of the statement into evidence.
* * *
(c) Unavailability as a witness is limited to the situation in which the declarant persistsin refusing to testify concerning the subject matter of the declarant's statement despite anorder of the court to do so." 725 ILCS 5/115--10.2(a), (c) (West Supp. 2003).
According to defendant, Sergio's second statement is inadmissible under section 115--10.2 of theCode because it lacked "circumstantial guarantees of trustworthiness" required for admission underthat statutory provision.(3) The State does not address the application of section 115--10.2.
Unless a witness is "unavailable" as that term is used in section 115--10.2(c), the residualhearsay statute does not apply. People v. Thomas, 313 Ill. App. 3d 998, 1003 (2000), overruled onother grounds, Crawford, 541 U.S. at ___, 158 L. Ed. 2d at 197, 124 S. Ct. at 1369. As set forthin the statute, "unavailability" is a term of art, i.e., it has a specific, limited definition for purposes ofthe statute. Thomas, 313 Ill. App. 3d at 1003. The statute defines unavailability as "the situation inwhich the declarant persists in refusing to testify concerning the subject matter of the declarant'sstatement despite an order of the court to do so." 725 ILCS 5/115--10.2(c) (West Supp. 2003). Inthis case, Sergio persisted in refusing to answer the questions posed by the State regarding the subjectmatter of his statements even after the trial court ordered him to do so. Therefore, we conclude thatSergio was "unavailable" as that term is defined in the residual hearsay statute. See People v. Wilson,331 Ill. App. 3d 434, 438-39 (2002) (discussing section 115--10.2 of the Code).(4)
Once unavailability is established, a hearsay statement is admissible under section 115--10.2only if the statement is trustworthy, material, and probative and serves the interests of justice. 725ILCS 5/115--10.2(a) (West Supp. 2003); People v. Brown, 303 Ill. App. 3d 949, 961 (1999). Asnoted above, defendant asserts that the second statement that Sergio made to police is inadmissibleunder section 115--10.2 of the Code because it lacked "circumstantial guarantees of trustworthiness." In support of this position, defendant argues that: (1) Sergio's statement was not made under oath;(2) Sergio did not speak from personal knowledge; (3) Sergio was a "young, gun-hiding and gun-selling gang member with all the baggage that attaches to said status in terms of lack of veracity,minimal truth-telling ability, and moral turpitude"; (4) Sergio implicated defendant in exchange forleniency on criminal charges filed against him; (5) Sergio's statement was not spontaneous; (6) theobjective of the police in interviewing Sergio was to obtain information to make an arrest in theshooting; (7) Sergio never acknowledged the statement in court; and (8) Sergio never reaffirmed thestatement.
Courts in Illinois have applied various tests to determine whether a particular statement bearsequivalent circumstantial guarantees of trustworthiness. For instance in Brown, the court consideredthe following four factors: (1) whether the statement was made spontaneously to a close acquaintanceshortly after the crime occurred; (2) whether the statement was corroborated by other evidence; (3)whether the statement was self-incriminating or otherwise against the declarant's interest; and (4)whether there was an adequate opportunity to cross-examine the declarant. Brown, 303 Ill. App. 3dat 961, citing Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). TheBrown court pointed out that not all four factors need be present for a statement to be admissible andthat the trial court's determination should be based on the "totality of the circumstances." Brown, 303Ill. App. 3d at 961. In Campbell, the court endorsed a test based on "the totality of the circumstancessurrounding the preparation of the statements." Campbell, 309 Ill. App. 3d at 431, citing Wright, 497U.S. at 820-21, 111 L. Ed. 2d at 655-56, 110 S. Ct. at 3149. The Campbell court, however,expressly rejected the notion that, in considering the totality of the circumstances, corroboratingevidence (a factor cited by the Brown court) is relevant. Citing to Wright, 497 U.S. at 822, 111 L.Ed. 2d at 657, 110 S. Ct. at 3150, the Campbell court explained that the statement must " 'possessindicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence attrial.' " Campbell, 309 Ill. App. 3d at 431. More recently, in Thomas, the court also endorsed atotality-of-the-circumstances test. Thomas, 313 Ill. App. 3d at 1005-06. To assist trial courts inimplementing this test, the Thomas court set forth a list of eight factors to consider, including: (1)whether the statement was made under oath; (2) whether the declarant spoke from personalknowledge; (3) the identity and background of the declarant and whether the declarant would use thewords contained in the statement; (4) the declarant's mental state; (5) the method used to interviewthe declarant; (6) the circumstances surrounding the making of the statement; (7) how the statementwas recorded; and (8) whether the declarant reaffirmed his or her statement. Thomas, 313 Ill. App.3d at 1006; see also People v. Quick, 308 Ill. App. 3d 474, 481 (1999) (implying use of a totality-of-the-circumstances test). It is within the province of the trial court to determine, based on the totalityof the circumstances, whether a particular hearsay statement is trustworthy. People v. Boyd, 307 Ill.App. 3d 991, 997 (1999). The trial court's determination will not be disturbed absent an abuse ofdiscretion. Boyd, 307 Ill. App. 3d at 997.
Examining the totality of the circumstances surrounding Sergio's second statement, weconclude that it bore equivalent circumstantial guarantees of trustworthiness and that the trial courtdid not abuse its discretion in finding the statement admissible under section 115--10.2 of the Code.Sergio was apprehended by police on a charge unrelated to the shooting. During his first interviewwith police, Sergio stated that "Juan Vargas" was the person who fired shots at 502 North Butrickand that Sergio had supplied Juan with the gun used in the shooting. The police determined that Juancould not have committed the shooting, because he was in custody at the time. The policeapproached Sergio with this information, and he gave a second statement. In his second statement,Sergio admitted that it was not Juan who fired the shots at 502 North Butrick but, rather, anindividual named "Baqweek." Sergio further stated that, the day after the shooting, "Baqweek" toldhim that he fired four shots at the residence while riding in a black Lincoln with "Emmanuel" and"Smokey." Sergio told police that he was familiar with the weapon used in the shooting, a ".380,"and that the gun always jammed after the third or fourth shot. Sergio stated that "Baqweek" told himthat the gun jammed on the night of the shooting. We believe that the trustworthiness of Sergio'ssecond account of the shooting was enhanced by the fact that he had little time to fabricate a storyonce the police made him aware that his initial account of the shooting could not be accurate. Moreover, as we pointed out above, Sergio was subject to cross-examination, but for whateverreason, defense counsel elected not to question Sergio regarding the second statement he made topolice. Admittedly, Sergio did not make the statement under oath or from personal knowledge. However, the statement employs terminology such as "crib," "shorty," and "nation." These are thetypes of slang a young person would use. The statement also references certain individuals by theirnicknames. Finally, we note that while Sergio never reaffirmed the contents of the second statement,he acknowledged during direct examination that he did make "statements" to the police. Thus, weconclude that the trial court did not abuse its discretion in admitting Sergio's second statement assubstantive evidence.
D. Sufficiency of the Evidence
Defendant also argues that the State failed to prove him guilty beyond a reasonable doubt of aggravated discharge of a firearm. "The State carries the burden of proving beyond a reasonabledoubt each element of the charge against the defendant." People v. Banuelos, 345 Ill. App. 3d 970,972 (2004). When reviewing a challenge to the sufficiency of the evidence, we consider whether,after viewing the evidence in the light most favorable to the prosecution, any rational trier of factcould have found the essential elements of the crime beyond a reasonable doubt. People v. Whirl,351 Ill. App. 3d 464, 469 (2004). We note that this standard of review applies equally to jury andbench trials. People v. Arndt, 351 Ill. App. 3d 505, 512 (2004). "In applying this standard, our roleis not to retry the defendant." Arndt, 351 Ill. App. 3d at 512-13. "Instead, the trier of factdetermines the weight to be given to the testimony of the witnesses, the witnesses' credibility, and thereasonable inferences to be drawn from the evidence." Arndt, 351 Ill. App. 3d at 513. "We will notreverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to justifya reasonable doubt of the accused's guilt." People v. Zizzo, 301 Ill. App. 3d 481, 486 (1998).
We initially note that defendant does not expressly specify which of his three convictions heis challenging. However, it appears from his argument that defendant is disputing only theconvictions of aggravated discharge of a firearm. A person commits the offense of aggravateddischarge of a firearm when he "knowingly or intentionally *** [d]ischarges a firearm at or into abuilding he or she knows or reasonably should know to be occupied and the firearm is dischargedfrom a place or position outside that building." 720 ILCS 5/24--1.2(a)(1) (West 2002). Normally,aggravated discharge of a firearm is a Class 1 felony. 725 ILCS 5/24--1.2(b) (West 2002). However,when the offense is committed "within 1,000 feet of the real property comprising a school," theoffense is enhanced to a Class X felony. 725 ILCS 5/24--1.2(b) (West 2002). In this case, defendantwas charged with and convicted of both "simple" aggravated discharge of a firearm and "enhanced"aggravated discharge of a firearm. Defendant does not challenge the element that distinguishes the"enhanced" offense from the "simple" offense, and we do not address that issue in this decision.
Defendant first claims that the State failed to prove that he was involved in the September 25,2002, shooting. Defendant points out that he provided an alibi for his whereabouts on the night ofSeptember 25, 2002. We find that the evidence presented at trial was sufficient to prove beyond areasonable doubt that defendant was the person who discharged the firearm at 502 North Butrick.
The trial court was presented with inconsistent accounts of the shooting from both Sergio andGomez. However, we find that after viewing the evidence in a light most favorable to the State, anyrational trier of fact could have found beyond a reasonable doubt that defendant was the shooter.Zizzo, 301 Ill. App. 3d at 489. As we mentioned earlier, it is for the trier of fact to determine theweight to be given to the testimony of the witnesses, the witnesses' credibility, and the reasonableinferences to be drawn from the evidence. Arndt, 351 Ill. App. 3d at 513.
Here, Sergio initially identified the shooter as an individual named "Juan." Gomez, the persondriving the car on the night of the shooting, also identified someone named "Juan" as the shooter, butindicated that an individual named "Quick" was also in the car. However, it later became apparentthat "Juan" was in custody at the time of the shooting. When Sergio was approached with evidencethat "Juan" had an alibi, he identified an individual named "Baqweek" as the shooter. Likewise,Gomez's second account of the shooting implicated defendant. At defendant's trial, the State wasunable to effectively examine Sergio regarding the contents of his statement identifying defendant asthe shooter. Gomez claimed that he did not know defendant, that he later recanted his identificationof defendant as the shooter, and that he learned of defendant's given name from statements given topolice by other individuals. However, when confronted with those statements at defendant's trial,Gomez acknowledged that defendant's given name was not mentioned in those statements. The trialcourt presumably found the testimony of Sergio and Gomez incredible. Based on our reading of therecord, we cannot disagree. We note that Sergio's mother, Maria Ruiz, identified defendant as anindividual who came to her house to retrieve a gun. Maria also identified defendant by the nickname"Baquick" or "Baqweek."
In addition, although defendant called two witnesses who provided him with an alibi for thenight of the shooting, the trier of fact could have found the alibi witnesses' testimony incredible. Bothwitnesses were related to defendant and neither one approached law enforcement authorities whenthey learned that their brother had been implicated in the shooting. See People v. Willoughby, 250Ill. App. 3d 699, 719 (1993); People v. Garza, 92 Ill. App. 3d 723, 729 (1981) (noting that thefamilial ties of alibi witnesses may bring their veracity under scrutiny such that their testimony maybe rejected).
Defendant also claims that the State failed to show that the house that was shot at wasoccupied at the time of the shooting. We conclude, however, that the evidence was sufficient toprove beyond a reasonable doubt that the premises fired upon were occupied. The evidencedemonstrated that at approximately 9:30 p.m. on Wednesday, September 25, 2002, the policereceived a report of a shooting at a house located at 502 North Butrick. The evidence furtherdemonstrated that the house fired upon belonged to a member of a rival gang. When the policearrived only about one minute after receiving the report, six people were in the home. After viewingthis evidence in the light most favorable to the prosecution, we conclude that any rational trier of factcould have found this essential element of the crime beyond a reasonable doubt. Whirl, 351 Ill. App.3d at 469. Accordingly, we also reject defendant's challenge to the evidence on this basis.
Before concluding, we briefly address three matters raised by the State in its brief. First, theState points out that there are some inaccuracies in the mittimus. The mittimus states, incorrectly,that defendant pleaded guilty to counts I and III of the indictment. In fact, defendant was foundguilty of counts II and IV of the indictment, following a bench trial. Second, the State asserts, andwe agree, that defendant's conviction of and sentence for count IV, aggravated discharge of a firearm,must be vacated because it is a lesser-included offense of count II, aggravated discharge of a firearmwithin 1,000 feet of real property comprising a school. See People v. King, 66 Ill. 2d 551, 566(1977). Third, the State urges us to remand the cause for sentencing on the unlawful use of a weaponconviction. However, without a copy of the report of proceedings of the sentencing hearing, wecannot determine that the trial court erred in imposing no sentence. Thus, we decline to remand thecause. Nevertheless, pursuant to Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), wemodify the mittimus to reflect that defendant was found guilty of count II of the indictment, followinga bench trial.(5)
III. CONCLUSION
For the foregoing reasons, we vacate defendant's conviction of and sentence for aggravateddischarge of a firearm but affirm as modified the remainder of the judgment of the circuit court ofLake County.
Affirmed in part as modified and vacated in part.
KAPALA and GILLERAN JOHNSON, JJ., concur.