Supreme Court Summaries

Opinions filed February 2, 2012

People v. Torres, 2012 IL 111302

Appellate citation: No. 1-08-3254 (unpublished order under Supreme Court Rule 23).

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

This case involves a homicide which took place in July of 1983 when a man was shot to death in a Chicago tavern. A bartender, who did not see the actual shooting, did see this defendant and the victim, a frequent customer, talking just before the event. After the shooting, he saw the body on the floor and, outside, "saw the person running." The defendant was arrested the next day and a preliminary hearing was held at which the bartender testified. The circuit court of Cook County found probable cause and set the case for further proceedings, but defendant failed to appear on the date set for his arraignment. A warrant was issued for his arrest, but it was accidentally purged from the system. Based on a 2006 tip from a man who said that he had seen his cousin's killer, the defendant was located in Burbank in 2007 and arrested. Meanwhile, the bartender had been deported in 1984.

In a bench trial, the defendant was convicted of first degree murder and was sentenced to 20 years in prison. At his trial, there was testimony from the police detective who first responded to the scene and from two other individuals who saw comings and goings in the neighborhood outside the tavern. Each of these neighborhood bystanders had seen a man with a gun, and, in police station lineups, had identified that man as the defendant. However, there were no in-court identifications.

The prosecution asked for and received permission to, introduce at trial the 1983 preliminary hearing testimony of the bartender-witness who had been deported. After the conviction, this issue was raised in posttrial proceedings in which it was alleged that use of the preliminary hearing testimony of the now-unavailable bartender violated the constitutional right to confront. The posttrial motion was denied and defendant sought review in the appellate court. At that level, he obtained a reversal and a remand, with the appellate court finding that the defect was not harmless as a matter of evidentiary law. The State appealed.

In this decision, the supreme court affirmed the appellate court, but it did so on the basis that defendant had been denied his constitutional right to adequately cross-examine. For one thing, when the witness testified at the preliminary hearing, discovery in the form of inconsistent statements the witness made to police was not available to defense counsel for use in cross-examination. In addition, the record of the preliminary hearing did not show the constitutionally required adequate opportunity for cross-examination. The preliminary hearing commenced amidst an obviously crowded docket. The supreme court expressed concern about the atmosphere in which the cross-examination was conducted, in which the court made it clear to defense counsel that the court was not enthusiastic about proceeding immediately with the preliminary hearing. Cross-examination of the bartender was brief, and the court placed restrictions-overt and covert-on it, seeming to send a message to defense counsel to wrap it up. The supreme court said that "it is clear from the record that counsel would have done more with the witness *** if he had felt free to do so." It could not be said that counsel was afforded the degree of cross-examination which is constitutionally required. Admitting the testimony was, therefore, error, and it was not harmless.

The appellate court's reversal was affirmed.