2020 IL App (1st) 180707-U No. 1-18-0707 Order filed December 7, 2020 First Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 8913 ) CHRISTIAN PLUMMER, ) Honorable ) Brian K. Flaherty, Defendant-Appellant. ) Judge, presiding.
JUSTICE COGHLAN delivered the judgment of the court. Justices Hyman and Pierce concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for aggravated unlawful use of a weapon, concluding the trial court did not abuse its discretion in excluding another person’s declaration against interest.
¶2 Following a bench trial, defendant Christian Plummer (defendant) was found guilty of
aggravated unlawful use of weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (3)(I) (West 2016)) and
sentenced to one year in prison. On appeal, defendant contends the trial court erred when it denied No. 1-18-0707
his pretrial motion to introduce hearsay testimony that another person admitted to possessing the
firearm. We affirm.
¶3 After a May 10, 2016, traffic stop, the State charged defendant by indictment with eight
counts of AUUW, alleging that he carried on or about his person or in a vehicle a handgun while
not having been issued a currently valid license under the Firearm Concealed Carry Act (720 ILCS
5/24-1.6(a)(1), (3)(A-5) (West 2016)) (counts I and II); while not having been issued a currently
valid firearm owner’s identification (FOID) card (720 ILCS 5/24-1.6(a)(1), (3)(C) (West 2016))
(counts III and IV); while also in possession of cannabis (720 ILCS 5/24-1.6(a)(1), (3)(E) (West
2016)) (counts V and VI); and while under 21 years of age (720 ILCS 5/24-1.6(a)(1), (3)(I) (West
2016)) (counts VII and VIII).
¶4 Before trial, a hearing was held on a motion filed pursuant to Chambers v. Mississippi, 410
U.S. 284 (1973), and Illinois Rule of Evidence 804(b)(3) (eff. Jan. 1, 2011), which sought
admission of hearsay statements made to the police by DeJahn Witcher (Witcher). 1 The defense
alleged that, around 5 p.m. on May 10, 2016, police stopped a vehicle in which defendant was the
front seat passenger. Police recovered a gun from under defendant’s seat and a bullet from the rear
passenger-side floorboard. Witcher was the rear passenger in the vehicle and was taken into
custody with defendant. Defendant alleged that, around 8:30 p.m., Witcher told Sergeant Deshon
Walker (Walker) and Officer John Borgen (Borgen) that the handgun belonged to him, he had
purchased it from someone named Shaq for $450, and he needed the gun for protection because
his brother had recently been attacked.
1 DeJahn Witcher is referred to throughout the record as “DeJahn Witcher,” “DeJahn Wichter,” and “Deshawn Richards.” We will refer to him as “Witcher” to be consistent with the parties.
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¶5 Defendant also alleged that Witcher told the police the handgun was in his possession when
the vehicle was stopped by Borgen and he kicked the handgun under the seat while defendant was
being removed from the vehicle. Defendant conceded that Witcher later recanted his statement and
was released without being charged. Defendant argued Witcher’s statement showed sufficient
indicia of trustworthiness under Chambers where the statement was (1) made shortly after the
crime; (2) corroborated by the evidence; (3) detailed with respect to when he purchased the
handgun, why he purchased it, and what he did with it during the traffic stop; and (4) self-
incriminating and against Witcher’s penal interest.
¶6 In response, the State asserted that Walker observed defendant making furtive movements
on the right side of his seat during the traffic stop and recovered the handgun from where he
observed defendant making those movements. The State further alleged that, around 10:20 p.m.,
Witcher recanted his statement that the gun belonged to him, claiming he had been trying to “help
out defendant” who “had been in trouble with the police before.” Witcher also told police that
defendant had “told him that he would post his bail money if he took the rap for him and that
because he did not have background the police wouldn’t charge him with the gun.”
¶7 The State argued Witcher’s statement should be barred under Chambers because (1) it was
not made spontaneously to a close acquaintance but rather during a formal police interview after
Witcher had been read and waived his Miranda rights; (2) there was no corroboration for the
statement other than the presence of the gun; (3) Witcher’s access to the area in which the gun was
recovered was blocked by a metal baseball bat and hoverboard; and (4) Witcher recanted his
statement shortly after making it, at which time he alleged the first statement was the product of
the promises made by the defendant.
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¶8 The court denied defendant’s motion, finding, under the totality of the circumstances,
Witcher’s statement was not trustworthy, especially where he gave “two completely opposite
statements within a short period of time, and he explain[ed] in statement [n]umber 2 the reasons
why he gave statement [n]umber 1. In other words why he admitted to the ownership of the gun
based on promises made by [defendant].”
¶9 At trial, Walker testified that, on May 10, 2016, Borgen was conducting a traffic stop of a
vehicle containing three occupants in the area of 161st Street and Sawyer Avenue. When Walker
arrived at the scene to assist, he observed Borgen speaking with the driver of the vehicle. Walker
approached the passenger side of the vehicle and, through an open window, spoke with Witcher,
who was seated in the back passenger-side seat. Walker smelled both fresh and burnt cannabis
emanating from the vehicle. He observed defendant, who was seated in the front passenger seat,
make several “movements from his waistband area to the -- between the passengers seat and the
passenger door area,” to the “floorboard area, between the seat and the door,” but never actually
saw defendant in possession of the gun.
¶ 10 Walker directed defendant to roll his window down, and asked whether there were any
illegal drugs in the vehicle. Defendant told him “no.” Walker observed traces of suspected cannabis
on defendant’s lap and on the face of his cell phone, which was “positioned partially off of his left
leg and [on] the center console.” Walker also observed a knotted plastic sandwich bag containing
suspected cannabis protruding from defendant’s right-front pocket. Walker again asked defendant
whether there were any illegal drugs in the vehicle and defendant again said, “no.” Walker then
reached inside the vehicle, pulled the bag from defendant’s pocket, and asked, “well, what about
this?” Defendant replied, “Oh, shoot. I forgot about that; I’m a smoker.”
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¶ 11 Walker asked defendant to exit the vehicle, patted him down, placed him in handcuffs, and
escorted him to the back seat of his squad car. By the time Walker returned to the vehicle to
perform an inventory search, Borgen had removed Witcher and the driver.
¶ 12 Before Walker began his search, Borgen “advised [him] that there was a projectile on the
rear floor board of the vehicle.” Initially, he saw only a baseball bat protruding from the rear of
the front passenger seat and a hoverboard behind the bat but, “once [he] looked over, [he] could
see the projectile on the floor.” After recovering the bullet, Walker searched the area where he saw
defendant “making his motions.” He saw “the butt of a [handgun] protruding from underneath the
seat where [defendant’s] hand had been moving.” The handgun was under the seat as if it had been
slid under on an angle. Walker removed the handgun and determined it was loaded with 10 live
rounds.
¶ 13 Defendant was transported to the police station separately from Witcher and the driver and
the three men were secured in separate holding cells. Around 8:38 p.m., with defendant’s attorney
present, Walker read defendant his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) and
interviewed him. Defendant told Walker “that the person who initially possessed the gun was
named John Adams, AKA Joe Joe.” He also stated his fingerprints would be on it because he had
touched it two days before on 158th Street in Harvey and that the occupants of the vehicle “were
not really familiar” with the owner of the handgun. Walker also spoke with Witcher and the driver.
After the interviews, defendant was charged and Witcher and the driver were released from
custody.
¶ 14 After the State rested, the defendant elected not to present any evidence. The trial court
found defendant guilty of AUUW counts V through VIII, and not guilty of AUUW counts I
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through IV. Defendant filed an amended motion for new trial, arguing, in part, the court (1) should
vacate its findings of guilt on counts V and VI because the State failed to prove the suspect
cannabis recovered by Walker was, in fact, cannabis, and (2) erroneously denied his Chambers
motion. The court vacated the findings of guilt on counts V and VI and denied the motion in all
other respects. After a subsequent sentencing hearing, defendant was sentenced to one year in the
Illinois Department of Corrections.
¶ 15 On appeal, defendant contends the trial court erred in denying his Chambers motion.
Specifically, he argues the court abused its discretion in barring admission of Witcher’s statement
against penal interest because it bore sufficient indicia of reliability and was crucial to his defense.
Defendant further argues that this was not harmless error.
¶ 16 Hearsay evidence is an out-of-court statement offered to prove the truth of the matter
asserted and is generally inadmissible unless it falls within a recognized exception to the hearsay
rule. People v. Tenney, 205 Ill. 2d 411, 432-33 (2002). One such exception applies to declarations
against interest, and is founded on the assumption that a person is unlikely to fabricate a statement
against his or her own interest. Id. at 433 (citing Chambers, 410 U.S. at 299). Because confessions
of criminal activity are often motivated by extraneous considerations and are not as inherently
reliable as statements against pecuniary or proprietary interest (Chambers, 410 U.S. at 299-300),
an “unsworn, out-of-court declaration that the declarant committed the crime, and not the
defendant on trial, is generally inadmissible, even though the declaration is against the declarant’s
penal interest.” Tenney, 205 Ill. 2d at 433. However, declarations against penal interest will be
admitted where justice requires. Id.
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¶ 17 In Chambers, the Supreme Court identified four factors to help determine the reliability of
a hearsay statement: “(1) the statement was spontaneously made to a close acquaintance shortly
after the crime occurred; (2) the statement is corroborated by some other evidence; (3) the
statement is self-incriminating and against the declarant’s interests; and (4) there was adequate
opportunity for cross-examination of the declarant.” Id. at 435 (citing Chambers, 410 U.S. at 300-
301). “The four Chambers factors are merely guidelines to determining admissibility rather than
hard and fast requirements; the presence of all four factors is not a condition of admissibility.” Id.
The ultimate question is whether the extrajudicial statement “was made under circumstances which
provide considerable assurance of its reliability by objective indicia of trustworthiness.” (Internal
quotation marks omitted.) People v. Thomas, 171 Ill. 2d 207, 216 (1996).
¶ 18 By the same token, the presence of one or more factors does not make a statement
necessarily trustworthy. People v. Gallano, 354 Ill. App. 3d 941, 957 (2004). Ultimately, the trial
court must evaluate the totality of the circumstances and determine whether the statement is
trustworthy enough to warrant admission. Id.
¶ 19 The trial court retains considerable discretion to exclude unreliable declarations against
penal interest, and “its ruling should not be reversed absent a clear showing of abuse of that
discretion.” Tenney, 205 Ill. 2d at 436. An abuse of discretion will only be found “where the court’s
ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the position
adopted by the trial court.” People v. Caffey, 205 Ill. 2d 52, 89 (2001). In this case, the trial court
found Witcher’s statement lacked sufficient indicia of reliability “[c]onsidering the four
[Chambers] factors and the totality of the circumstances.”
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¶ 20 As an initial matter, the parties agree that the third Chambers factor—whether Witcher’s
statement was incriminating and against his penal interest—weighed in favor of admission. The
parties also agree that the State had no prior opportunity to cross-examine Witcher, and he was an
unavailable witness because he could assert his fifth-amendment privilege against self-
incrimination. Thus, the fourth factor weighed against admission. See id. at 101 (witness asserting
fifth-amendment privilege is an unavailable witness not subject to cross-examination, and the
fourth Chambers factor weighs against admission). Defendant argues that failure to satisfy the
fourth factor does not bar admission where the statement is otherwise reliable, but, as discussed
below, the statement was not otherwise reliable.
¶ 21 With respect to the first Chambers factor, the record shows the crime occurred around 5:30
p.m. and Witcher gave his first statement around 8:30 p.m. Thus, it was made shortly after the
crime occurred, weighing in favor of its admission. See People v. Swaggirt, 282 Ill. App. 3d 692,
698, 701 (1996) (statements made within 24 hours were made “shortly after the crime occurred”
for purposes of the first Chambers factor). However, the record also shows the statement was not
made spontaneously or to a close acquaintance but rather during a police interrogation, which
weighs against its admission. See Thomas, 171 Ill. 2d at 216, 218; accord Caffey, 205 Ill. 2d at 96-
97 (finding statement to police in response to questioning did not satisfy first Chambers factor
where it was made neither spontaneously nor to a close acquaintance).
¶ 22 Defendant, relying primarily on People v. Kokoraleis, 149 Ill. App. 3d 1000, 1020-21
(1986), argues that, even though Witcher’s statement was not made spontaneously to a close
acquaintance, the first Chambers factor weighs in favor of admission because Witcher’s statement
was likely to intensify efforts to prosecute him. In Kokoraleis, the trial court excluded custodial
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statements made by two men confessing to murder and rape, crimes with which the defendant was
ultimately charged. Id. at 1017. Kokoraleis found that, although the first Chambers factor was not
met as the statements were made “some time after the crime” to law enforcement personnel rather
than spontaneously soon after the crime occurred to close friends, this alone did not raise a
presumption of untrustworthiness. Id. at 1020. Instead, given the “obvious inculpatory character”
of the statements made while in custody to law enforcement personnel, where neither declarant
“stood to benefit by disclosing his role in the offenses,” neither implicated the defendant, and both
“must have been aware of the possibility that disclosure would lead to criminal prosecution,” these
statements were more likely than not trustworthy. Id. at 1021.
¶ 23 Like the declarants in Kokoraleis, Witcher made an inculpatory statement to law
enforcement personnel, confessing to the offense with which defendant was ultimately charged
but without implicating defendant. However, unlike in Kokoraleis, Witcher almost immediately
recanted his confession, explaining that he had only agreed to take the blame for the gun because
of certain promises made by defendant. We agree with the trial court that Witcher’s statement was
unreliable given that he recanted within two hours of giving the statement and provided a
reasonable explanation why he had initially confessed.
¶ 24 Defendant, relying on Chambers, argues Witcher’s recantation “did not strip Witcher’s
initial, inculpatory statement of its considerable indicia of reliability.” According to defendant, in
Chambers, the third-party declarant also recanted his confession and, despite the recantation, the
Supreme Court found the declarant’s statement sufficiently reliable for admission where the parties
would be free to argue its credibility before the trier of fact.
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¶ 25 In Chambers, a declarant recanted his prior, sworn confession one month after he made it.
Chambers, 410 U.S. at 288. The declarant testified at trial, his prior confession was admitted into
evidence, and, on cross-examination by the State, he testified he had recanted his confession and
explained why he did so. Id. at 291. Thus, unlike the case at bar, there was no immediate
recantation or hearsay issue regarding the declarant’s recanted confession. The hearsay issue in
Chambers arose from the trial court’s denial of the defendant’s motion to present hearsay
testimony from three close acquaintances of the declarant to whom he allegedly made three
separate, inculpatory statements the night of or day after the murder, which he did not recant. Id.
at 291-93. Thus, Chambers is inapposite to the case at bar. In sum, the first Chambers factor weighs
against admissibility.
¶ 26 With respect to the second Chambers factor, we find Witcher’s statement was not
sufficiently corroborated by the available evidence. The record in this case shows the gun was
recovered from the floorboard area where Walker observed defendant making furtive movements
during the stop. The record also shows a baseball bat was protruding from beneath the front
passenger seat into the area in which Witcher was seated and behind it was a hover board. These
facts refute Witcher’s statement that he was able to kick the handgun under the front passenger
seat after defendant had exited the vehicle. Further, Witcher’s statement regarding how he
procured the firearm—that he purchased it just prior to the stop for $450 from a man named Shaq
because he needed it for protection—is not corroborated by any other evidence in the record.
Notably, Witcher’s statement was inconsistent with defendant’s statement, which was that the gun
belonged to “John Adams AKA Joe Joe,” that defendant had last seen it two days before the stop
in Harvey, and that defendant’s fingerprints would be on the gun because he handled it at that time.
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Under these circumstances, we conclude Witcher’s statement was not sufficiently corroborated so
as to weigh in favor of admission under Chambers. See People v. McAllister, 193 Ill. 2d 63, 102-
03 (2000) (finding trial court did not abuse its discretion in excluding a declaration against penal
interest where the statement was only minimally corroborated by the evidence).
¶ 27 Defendant argues that the State could have investigated Witcher’s statement further to
disprove the details therein but failed to do so. However, as the proponent of the evidence sought
to be admitted, defendant bore the burden of establishing its admissibility. People v. Torres, 2012
IL 111302, ¶ 53. Therefore, the second Chambers factor weighs against admissibility of Witcher’s
recanted confession.
¶ 28 In sum, we find that the trial court reasonably concluded that Witcher’s statement was
unreliable and therefore inadmissible. Witcher’s statement was not made spontaneously to a close
friend, he recanted it with a reasonable explanation shortly after he made it, it completely
contradicts defendant’s statement regarding acquiring the firearm, and is, at best, minimally
corroborated by the evidence. Accordingly, we conclude the trial court did not abuse its discretion
by excluding admission of Witcher’s declaration against penal interest.
¶ 29 For the reasons stated, we affirm the trial court’s judgment.
¶ 30 Affirmed.
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