People v. Anderson

                                             THIRD DIVISION
                                             AUGUST 20, 1997



1-95-3354

PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
                                   )    the Circuit Court
     Plaintiff-Appellee,           )    of Cook County.
                                   )    
     v.                            )    No. 92 CR 11116
                                   )    
DEANGELO ANDERSON,                 )    The Honorable            
                                   )    Thomas A. Hett,      
     Defendant-Appellant.          )    Judge Presiding.


     JUSTICE LEAVITT delivered the opinion of the court:
     A jury found DeAngelo Anderson guilty of five attempted
murders and not guilty of two murders.  On August 29, 1995, a
judge sentenced Anderson to five concurrent, extended terms of 45
years in prison.  We reverse and remand.  
     On April 17, 1992, Latrice Cooper held a party at her house
located at 6740 South Dorchester to raise funds for the funeral
of a Gangster Disciple.  There was Gangster Disciple graffiti on
her home, and her brother, Eddie Cooper, was a Gangster Disciple. 
     Latrice's backyard is adjacent to the Illinois Central
Railroad tracks, which lie along an embankment elevated six to
seven feet above the yard.  At around one o'clock in the morning,
there were between 100 and 300 people on Latrice's property. 
Between 15 and 50 of them were in the backyard.  Sometime after
one o'clock, shots were fired at the house from the direction of
the railroad tracks.  Two people were fatally shot.  Two others
testified at trial that they were shot and injured.  Two persons
who were not harmed testified that they observed three others who
had been shot and wounded.  
     Michael Sullivan, Andre Mauldin and Anderson, all members of
the Four Corner Hustlers, a rival street gang of the Gangster
Disciples, were charged with the murders and attempted murders. 
In a trial prior to Anderson's, separate but simultaneous juries
convicted Sullivan and Mauldin of the crimes.     
     Two eyewitnesses testified at Anderson's trial: Latrice
Cooper and Jonathon Foster.  Foster was a member of the Gangster
Disciples present at Latrice's party.  Latrice, too, had very
close ties to the Gangster Disciples.  Neither Latrice nor Foster
spoke to police when officers arrived at the crime scene.  
     Police picked Foster up the day after the shooting.  He
accompanied officers to the third district station where he saw
Sullivan and identified him as one of the shooters.  Foster later
identified Anderson as one of the shooters.  
     Foster testified that he was in Latrice's kitchen when the
shooting began.  He said he ran to a three-inch square window
that overlooked the backyard, looked out and saw rival gang
member Sullivan coming toward the house from the railroad tracks,
firing an automatic weapon as he walked.  Foster also testified
that Anderson, whom he knew as DeAngelo and as Atlo and whom he
knew was a Four Corner Hustler, was standing by a garage just
south of Latrice's property holding a weapon.  Foster admitted
previously telling detectives and an assistant state's attorney
that Anderson was in Latrice's backyard rather than the yard
south of Latrice's.      
     Foster said he left the kitchen and walked downstairs to the
basement where he saw Tasha Thomas and Shelley O'Dell who had
both been fatally shot.  Foster testified that before Shelley
O'Dell died, he said, "don't let me die."  However, the medical
examiner testified that O'Dell's injury killed him instantly.  
     Foster acknowledged, at trial, that when an investigator
from the public defender's office showed him a picture of
Anderson, he wrote on the back of it "this is not the gun man I
saw."  He said he wrote that because he thought the man pictured
was Anderson's brother, Reggie, who was a Gangster Disciple and
who looked like Anderson.  Foster admitted a 1991 conviction for
possessing a stolen motor vehicle, but denied a 1991 burglary
conviction, a certified copy of which was introduced into
evidence by the defendant.   
     On April 19, 1992, two days after the shooting, police
picked up Latrice who then, for the first time, spoke to officers
about the shooting.  In two separate line-ups, Latrice identified
Anderson and Sullivan, both of whom she knew were Four Corner
Hustlers.  
     Latrice testified that she was in her basement when the
shooting started.  She said she climbed the stairs and, looking
out a window, saw Michael Sullivan just outside of her yard.  She
testified that she saw Anderson in the yard south of her home
holding what appeared to be a weapon.  
     Ralph Metz, an investigator with the public defender's
office, testified that he interviewed Latrice in April 1993 and,
at that time, Latrice told Metz that Anderson had been in her
back yard and not the yard south of hers.  Metz testified that he
again interviewed Latrice on April 23, 1995.  During that
meeting, Metz said Latrice told him more than once that she did
not see Anderson on the night of the shooting at all.  At trial,
Latrice denied making both statements. 
      Michael Sullivan made a statement to the police wherein he
confessed his participation in the shooting and named the others
who took part as:  Pierre, Andre Mauldin and Timothy Shelley.  He
said he used a nine millimeter uzi, Pierre used a .38 special,
Tim used a Tech 9 and Andre Mauldin (also known as Dwayne) used a
Mach 11 in the shooting.  He gave a twenty-one page statement
while in an interview room on April 19, 1992 at 11:17 p.m. in the
presence of an assistant state's attorney, a detective and the
court reporter who transcribed it.  The statement is in question
and answer form.  In it, Sullivan says he and his cohorts wore
ski masks during the attack.  At the time Sullivan gave his
statement, Anderson had already been in police custody for nearly
twenty-four hours.  Anderson's name is not mentioned in
Sullivan's statement.         
     Andre Mauldin gave a statement on April 20, 1992 at 12:55
a.m.  That statement was signed by Mauldin, an assistant state's
attorney (not the same person to whom Sullivan confessed), a
detective and a youth officer.  In the statement, Mauldin
acknowledges his Miranda rights and then inculpates himself in
the shooting.  His is a four-page statement in summary form,
handwritten, although not by Mauldin, factually like Sullivan's. 
In it, Mauldin names the same four persons Sullivan named as the
perpetrators of the crimes.  Mauldin's statement makes no mention
of Anderson.  
     Bullets recovered from the scene came from four different
nine millimeter weapons.  Police recovered two weapons which they
believed were used in the shooting:  a nine millimeter Intra Tech
Luger and a .38 caliber revolver.  They recovered the Intra Tech
Luger, along with Timothy Shelley's identification, at 6808
Ridgeland, where officers went looking for Shelley and Pierre. 
Both are currently fugitives.
     Before trial, the state moved in limine to bar Anderson from
introducing Mauldin's and Sullivan's confessions.  In its motion,
the prosecution argued the statements, which the state introduced
and relied on in the declarants' trials, were unreliable hearsay
which failed to meet the requirements of the exception for
statements against penal interest.  The court denied the state's
motion, finding that the statements were corroborated both
internally and by physical evidence, and concluded, "in the
interest of justice the jury should have that information so that
they can weigh and make determinations concerning the factual
basis for the finder of fact."  Before trial, however, the court
reversed itself stating: (1) the two confessions did not conform
to ballistics evidence, (2) each declarant denied the truth of
his confession at his own trial, (3) Mauldin's and Sullivan's
failure to name Anderson did not mean Anderson was not there, and
(4) there would be eyewitness testimony that Anderson was
present.            
     Anderson alleges six errors occurred in his trial.  He
claims: (1) the trial court erred in excluding Mauldin's and
Sullivan's statements; (2) prosecutors' misconduct denied him a
fair trial because they misrepresented evidence to the jury; (3)
the trial court erred by answering a jury question posed during
deliberations improperly; (4) the jury verdicts were legally
inconsistent warranting reversal; (5) the state failed to prove
Anderson guilty beyond a reasonable doubt of one of the attempts;
and (6) the trial judge relied on improper factors in sentencing
Anderson.  Because we find his first claim meritorious, we
reverse on that ground alone and decline to decide the other
issues raised.  
     Anderson claims co-defendants' statements were admissible
hearsay because they were against the declarants' penal interests
when made.  The general rule in Illinois is that extrajudicial
declarations by a declarant not under oath that he, and not the
defendant on trial, committed the crime are inadmissible as
hearsay though the declarations are against penal interest. 
People v. Bowel, 111 Ill. 2d 58, 66, 488 N.E.2d 995 (1986). 
Statements against penal interest may be admitted, however, when
justice requires.  Bowel, 111 Ill. 2d  at 66; People v. Swaggirt,
282 Ill. App. 3d 692, 700, 668 N.E.2d 634 (1996).  As the United
States Supreme Court explained, "where constitutional rights
directly affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the
ends of justice."  Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973).    
     In deciding whether to admit such statements, the pivotal
question "is whether the declaration was made under circumstances
that provide 'considerable assurance' of its reliability by
objective indicia of trustworthiness."  Bowel, 111 Ill. 2d  at 67,
citing Chambers, 410 U.S.  at 300-01.  Put another way, the trial
court must determine whether the statements were made under
"circumstances that impress[ed] the speaker with the solemnity of
his statements."  Chambers, 410 U.S.  at 298.  
     In Chambers, the Court held a declaration admissible because
it had sufficient indicia of reliability where (1) the statement
was made spontaneously to a close acquaintance shortly after the
crime occurred; (2) the statement was corroborated by other
evidence; (3) the statement was self-incriminating and against
the declarant's interest; and (4) there was adequate opportunity
for cross-examination of the declarant.  Bowel, 111 Ill. 2d  at
66-67.  Our supreme court indicated that the four factors
enumerated in Chambers are to be regarded "simply as indicia of
trustworthiness and not as requirements of admissibility." 
Bowel, 111 Ill. 2d  at 67.  A trial court must consider the
totality of the circumstances in deciding whether an
extrajudicial statement is trustworthy, and its determination
will not be reversed absent an abuse of discretion.  People v.
Carson, 238 Ill. App. 3d 457, 463, 606 N.E.2d 363 (1992); Bowel,
111 Ill. 2d  at 68.       
     Anderson rightly asserts that this court found a statement
trustworthy when two of the factors set forth in Chambers and
Bowel were admittedly absent.  People v. Kokoraleis, 149 Ill.
App. 3d 1000, 1025, 501 N.E.2d 207 (1986).  In Kokoraleis, we
held that the lower court abused its discretion in excluding the
co-defendants' confessions.  Those statements, which were made to
a state's attorney and police officers while the declarants were
in custody, were characterized by this court as reliable because
they tended to intensify police efforts to prosecute the
declarants.  Kokoraleis, 149 Ill. App. 3d at 1020-21.  "Given the
obvious inculpatory nature of the statements made by both
declarants while in custody to the law-enforcement personnel,
these statements are more likely than not to be trustworthy." 
Kokoraleis, 149 Ill. App. 3d at 1021.  Even though the declarants
were unavailable at trial and their statements were made neither
spontaneously soon after the crime occurred nor to close friends,
we held that excluding those statements was an abuse of
discretion.  Kokoraleis, 149 Ill. App. 3d at 1025.
     Both the approach utilized and the result achieved in
Kokoraleis were duplicated in Swaggirt, 282 Ill. App. 3d at 705. 
There, the declarant allegedly confessed to the crime with which
the defendant was charged.  However, the declarant was not
available for cross-examination (he asserted his fifth amendment
rights) and he did not confess to close acquaintances as
envisioned by the Court in Chambers.  The declarant did make a
statement shortly after the crime occurred, which was against his
penal interest and was corroborated by other evidence in the
case.  Swaggirt, 282 Ill. App. 3d at 705.  Under those
circumstances we held, "in light of the constitutional guarantee
that criminal defendants should have a 'meaningful opportunity to
present a complete defense,' we conclude that the trial court
abused its discretion in excluding the [hearsay declaration
against penal interest]."  Swaggirt, 282 Ill. App. 3d at 705,
quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).       
     We find Swaggirt and Kokoraleis apposite and persuasive. 
Both consider trustworthy statements which failed to satisfy two
of the four Chambers tests but had other important indicia of
reliability.  Swaggirt, 282 Ill. App. 3d at 705; Kokoraleis, 149
Ill. App. 3d at 1020-21.  Mauldin's and Sullivan's statements had
signs of reliability identical to those of the declarant's
statement in Swaggirt.  All three confessions were made shortly
after the crimes with which defendant was charged occurred, were
against declarants' penal interests when made and were
corroborated by other evidence.  Swaggirt, 282 Ill. App. 3d at
705.  Additionally, co-defendants' statements were given to
police and prosecutors, a telling mark of trustworthiness. 
Kokoraleis, 149 Ill. App. 3d at 1020-21.   
     The state relies heavily on this court's holding in People
v. Carson, 231 Ill. App. 3d at 457.  There, this court held the
trial court had not abused its discretion in excluding statements
of co-defendants based on the totality of the circumstances when
two of the four factors enumerated in Chambers were wanting. 
Carson, 231 Ill. App. 3d at 463.  In Carson, a murder case, one
of the co-defendants was defendant's brother.  When Carson's
brother and the other co-defendant gave their statements, neither
of which inculpated the defendant, the defendant's identity and
his participation in the murder were not yet known by police,
"allowing a reasonable inference that because defendant [was] the
brother of co-defendant * * * the co-defendants might not
implicate defendant in the murder at the time of their arrests." 
Carson, 231 Ill. App. 3d at 463.  This court principally relied
on the consanguinity of the defendant and the declarant in
determining that the trial court had not abused its discretion in
excluding co-defendants' statements based on unreliability. 
Carson, 231 Ill. App. 3d at 463.  
     Although the totality of the circumstances in that case
justified the trial court's exclusion of co-defendants'
statements, the circumstances in this case did not.  While there
was testimony that Anderson was in the same gang as the co-
defendants, Anderson was not related to either co-defendant.  No
argument can be made that Mauldin and Sullivan did not mention
Anderson solely to protect a fellow gang member because they
inculpated two other members of their gang.  Moreover, Anderson
was never shown to be a leader of the Four Corner Hustlers.  In
fact, evidence showed Sullivan was the highest ranking official
of the gang being charged.  Importantly, when Sullivan gave his
statement, the police already had Anderson in custody.  Sullivan
knew, when he gave his statement, that Anderson was in custody
because he saw Anderson at the police station.  Therefore, no
motivation to protect a fellow gang member can be found on the
record here.  The facts of Carson are materially distinguishable
from those of the instant case.  Therefore, in analyzing this
case, we address each of the factors announced by the Court in
Chambers and determine whether the totality of the circumstances
warranted these statements' exclusion.  Bowel, 111 Ill. 2d  at 68.
     The first factor used in assessing trustworthiness is
whether the statements were made spontaneously to close
acquaintances shortly after the crime occurred.  Chambers, 410 U.S.  at 300.  Mauldin and Sullivan made statements shortly after
the crime occurred, approximately two days later, while the
events at issue were still fresh in their minds.  But, they
confessed to police and prosecutors rather than close friends. 
However, we have held that confessions to law enforcement
officers are "more likely than not trustworthy," because they
tend to intensify prosecutorial efforts against the declarant. 
Kokoraleis, 149 Ill. App. 3d at 1021.  One purpose of the rule
excluding hearsay declarations against penal interest is to guard
against "the presentation of perjured testimony to the jury." 
Chambers, 410 U.S.  at 299.  The testimony of close acquaintances
of the declarant is considered somewhat suspect and "often
motivated by extraneous considerations."  Chambers, 410 U.S.  at
300.  
     In this case, declarants both made statements in the
presence of police, prosecutors and recorders.  There can be no
doubt both statements were actually made by the declarants. 
Additionally, the circumstances in which these confessions were
given were certainly sufficient to "impress the speaker[s] with
the solemnity of [their] statements."  Chambers, 410 U.S.  at 298. 
Mauldin and Sullivan both must have known, having been told of
their Miranda rights, that they were subjecting themselves to
prosecution by confessing.  This is a strong indication their
statements' reliability.  Kokoraleis, 149 Ill. App. 3d at 1021.  
     The second factor is whether co-defendants' statements were
corroborated by other evidence in the case.  Chambers, 410 U.S. 
at 300.  The co-defendants' statements were corroborated by
ballistics evidence, physical evidence and witness testimony. 
Police recovered guns of the type described in the statements and
believed those guns were used in these crimes.  Testimony
corroborated the path co-defendants said they took to Latrice's
backyard and the location where co-defendants said the
perpetrators stood during the attack.  Weapons' cartridges were
also found on the ground behind Latrice's yard in the several
spots where Sullivan and Mauldin said the attackers stood while
they fired.  And, investigators found bullets fired from the
types of guns described by co-defendants at the scene.    
     The corroboration of the statements sought to be admitted
here is like that in People v. Nally, 216 Ill. App. 3d 742, 769,
575 N.E.2d 1341 (1991).  In Nally, we found the second Chambers
factor present where the statement, in which declarant allegedly
confessed to the crime with which defendant was charged, included
a description of the gun which was later found by police
investigating the crime, a description of the area where the
shooter stood consistent with police accounts and an explanation
for debris apparently left behind by the shooter around that
spot.  To the state's argument that declarant's statement was not
reliable or authentic because the information contained therein
was previously and widely reported by media, this court responded
that "such concerns go more to the weight to be accorded such
testimony rather than admissibility."  Nally, 216 Ill. App. 3d at
769.    
     Furthermore, co-defendants' statements were corroborated by
each other.  "Where co-defendants' confessions are identical in
all material respects, the likelihood that they are accurate is
significantly increased."  Lee v. Illinois, 476 U.S. 530, 545, 90 L. Ed. 2d 514, 106 S. Ct. 2056 (1986).  Mauldin and Sullivan gave
statements in two different rooms, to two different state's
attorneys, at two different times, that were identical in their
material terms.  
     The state highlights the statements' differences. 
Sullivan's was transcribed by a court reporter, while Mauldin's
was written in summary form by someone other than Mauldin. 
Sullivan, in response to a question, said he and his cohorts wore
ski masks.  Mauldin's statement is silent on the issue of whether
ski masks were worn.  Mauldin said Sullivan told him to count to
three, and that on three the attack would begin.  Sullivan said
only that Mauldin counted to three, but did not say the count was
pursuant to his instruction.  We find these disparities
negligible.  Each co-defendant inculpated himself, named the same
four perpetrators, described the same events which led to the
crime and detailed the crime virtually identically.  Co-
defendants' statements are identical in all material respects and
thus more likely accurate than not.  Lee, 476 U.S.  at 545.
     The third Chambers factor is whether the statements were
self-incriminating and against the declarants' interests.  Bowel,
111 Ill. 2d  at 66-67.  The state concedes that co-defendants'
statements were self-incriminating and against declarants'
interests.  
     The fourth factor is whether there was adequate opportunity
for cross-examination of the declarants.  Bowel, 111 Ill. 2d  at
66-67.  Both declarants testified and were cross-examined at
their own trial.  Both were called as witnesses by Anderson and
both invoked their fifth amendment rights.  However, the
declarants' unavailability is only one relevant factor in
determining trustworthiness.  Bowel, 111 Ill. 2d  at 68.  "The
unavailability of [declarants] to testify does not preclude
admissibility of their statements."  Kokoraleis, 149 Ill. App. 3d
at 1024; Carson, 238 Ill. App. 3d at 463.  Having determined that
co-defendants statements clearly satisfy at least two and perhaps
three of the Chambers tests for reliability, we consider other
factors which lead to our conclusion that co-defendants'
statements were erroneously excluded.     
     The trial court, reversing its earlier ruling, granted the
state's motion in limine for several stated reasons.  First, it
held that because both declarants denied the truth of their
statements at trial, the statements were unreliable.  The record
reveals that the premise for this conclusion is unsound. 
Sullivan did not wholly disaffirm the truth of his statement. 
Testifying at his trial, Sullivan admitted his participation in
the shootings, but claimed self-defense.  He admitted giving the
statement and said he told police the truth.  On cross-
examination, Sullivan said there were some mistakes in his
statement.  While Mauldin wholly disaffirmed the truth of his
statement at his trial, he never denied making it.  
     Even if both declarants denied the truth of their statements
at trial, which they did not, their recantations would be non-
dispositive of the statements' reliability in this case.  These
statements were corroborated by physical evidence, ballistics
evidence, witness testimony and each other.  They were given at
different times, in different places, with different witnesses
and recorders present, to different police officers and
prosecutors, with no hint of collusion yet they are identical in
their material terms.  Considering the totality of the
circumstances, recantation alone should not defeat the
confessions' admissibility here.  Bowel, 111 Ill. 2d  at 68.  
     The next reason the trial court articulated for granting the
state's motion was that it anticipated eyewitness testimony
placing Anderson at the scene.  Again, this has no relevance to
whether co-defendant's statements were trustworthy when made. 
Chambers, 410 U.S.  at 298.
     The court also granted the motion because, it explained,
although co-defendants' statements did not mention Anderson, that
did not mean Anderson did not commit the crimes.  We do not
consider this a reason to exclude the statement as some evidence
of defendant's innocence for the jury to weigh.  It certainly is
irrelevant to the determination of whether co-defendants'
statements were reliable, or "made under circumstances that
impress[ed] the speaker with the solemnity of his statements." 
Chambers, 410 U.S.  at 298.  And, the omission itself might have
been persuasive evidence of Anderson's innocence.  Each co-
defendant said four perpetrators committed these crimes and each
co-defendant named the same four.  Neither named Anderson.  "The
absence of such a nexus could cast serious doubt in the minds of
the jurors that defendant was guilty of the charged offense[s]." 
Carson, 238 Ill. App. 3d at 462.  Anderson's absence from co-
defendants' accounts is particularly meaningful where, as here,
the entire evidence against Anderson consisted of statements
given by two eyewitnesses both of whose veracity, memory and
impartiality were, at least, called into question.  This was not
a case where the evidence overwhelmingly established the
defendant's guilt.  Indeed, the jury chose not to convict
Anderson of murder, finding him guilty only of attempted murder. 
Viewed in light of the evidence here, these verdicts are 
logically inconsistent and suggest jury uncertainty regarding
Anderson's involvement in these crimes.      
     The final ground asserted by the trial court for excluding
the confessions was that they did not conform to ballistics
evidence.  That goes to the second of the four Chambers factors. 
Chambers, 410 U.S.  at 300.  However, we disagree with the trial
court's finding that ballistics evidence contradicted the
statements.  Both statements said four guns of specific types
were used and two of those guns were recovered by police.  One
was discovered with the identification card of a Four Corner
Hustler identified in both statements as one of the shooters. 
Bullets found at the scene were of the type fired from the guns
described by co-defendants in their statements, and cartridges
from guns of the type described by co-defendants were found in
the spots co-defendants said the shooters stood.            
     In conclusion, we find the state's argument that co-
defendants' statements are unreliable ironic because the
circumstances under which those statements were made,
memorialized and verified were almost exclusively in the state's
control.  Furthermore, co-defendants' statements were introduced
and used against Mauldin and Sullivan at their own trials by the
state which, at that time, urged their reliability.  
     "Few rights are more fundamental than that of an accused to
present [evidence] in his own defense."  Chambers, 410 U.S.  at
302.  The evidence rejected by the trial court bore persuasive
assurances of trustworthiness and thus was within the exception
to the hearsay rule for declarations against penal interest.  We
are not satisfied that admission of these statements would not
have changed this trial's outcome.  Because the trial court's
exclusion of co-defendants' statements denied Anderson a trial in
accord with traditional and fundamental standards of due process,
we find the court abused its discretion in so ruling.  Chambers,
410 U.S.  at 302. 
     For all of these reasons, we reverse the judgment of the
trial court and remand this cause for a new trial.  Anderson can,
of course, only be retried on the five counts of attempt murder
for which he was found guilty and not on the two counts of murder
for which he was found not guilty.  People v. P.H., 145 Ill. 2d 209, 224, 582 N.E.2d 700 (1991).   
     REVERSED AND REMANDED.
     Cousins, P.J., and Gordon, J., concur.