Docket No. 88208–Agenda 1–November 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								EDWARD TENNEY, Appellant.

Opinion filed April 18, 20902.

	JUSTICE FREEMAN delivered the opinion of the court:

	Following a jury trial in the circuit court of Kane County,

defendant, Edward Tenney, was convicted of the first degree

murder of Virginia Johannessen. See 720 ILCS 5/9–1(a) (West

1992). At a separate sentencing hearing, the same jury found

defendant eligible for the death penalty and further determined that

there were no mitigating circumstances sufficient to preclude

imposition of that sentence. Accordingly, the trial court sentenced

defendant to death. That sentence has been stayed pending direct

review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs.

603, 609(a). We reverse defendant’s conviction and remand for a

new trial.

BACKGROUND

	Defendant was indicted on six counts of first degree murder.

Three counts of the indictment charged defendant with the January

2, 1993, murder of Johannessen, and three counts charged

defendant with the October 1, 1993, murder of Mary Oberweis. A

jury determined that defendant was fit to stand trial for the two

murders. Defendant was tried separately for each murder. Prior to

his trial for the Johannessen murder, defendant was convicted of

the Oberweis murder. Regarding the Johannessen murder,

defendant was tried on one count of knowing murder and one

count of felony murder based on residential burglary. See 720

ILCS 5/9–1(a)(2), (a)(3) (West 1992). The State entered a nolle prosequi on the remaining count.

	Johannessen (hereafter victim) lived at 1301 Felton Road in

Aurora. In January 1993, the victim, 74 years old, lived at that

address alone and had resided lived there for approximately 40 years.

	The victim’s brother, Francis Reines, saw her every few

weeks. On January 5, 1993, Reines had a telephone conversation

with their sister Regina regarding the victim. That conversation, coupled with the fact that Reines had not been able to contact the

victim, prompted him to drive to the victim’s house and check on

her.

	Reines arrived at the victim’s house at approximately 10:30

a.m. He unlocked the back door with his key and disarmed the

electronic burglar alarm. The alarm system included motion

detectors. However, according to the victim’s daughter, Barbara

Johannessen-Bailey, the victim was able to disarm the motion

detector in the basement without deactivating the entire system.

According to Reines, the victim’s house had been burglarized twice

prior to her murder. He did not believe that anyone was present

during these prior burglaries. He did not remember whether anyone

was ever apprehended for them.

	Walking through the house, Reines saw the victim sitting in a

chair in a corner of the living room. She appeared injured; her head

was tilted back, looking up. He immediately telephoned 911.

	At 10:51 a.m., Officer Thomas Blincoe of the Kane County

sheriff’s department was dispatched to the victim’s residence to

assist an ambulance in a possible death investigation. When he

arrived, the ambulance was already at the scene. Reines and the

ambulance crew directed Officer Blincoe to the victim, whom the

paramedics had pronounced dead. Blincoe saw the victim sprawled

in a chair with a large bloodstain on the right side of her head.

	Officer Blincoe did not find any type of weapon near the

victim. He observed that the house was very cluttered with stacks

and piles of books, magazines, and other items throughout the

entire house, including the basement. These things were arranged

somewhat orderly; there were pathways to negotiate through the

house.

	Checking the exterior of the house, Officer Blincoe saw that

a basement window was broken. The window frame was ripped

out and lying on the ground. A two-day-old newspaper was in the

mailbox. Blincoe and Reines saw that the victim’s garage was

empty. Blincoe reported the victim’s car as stolen.

	At 11:28 a.m., evidence technician Kevin Hogle of the Kane

County sheriff’s department arrived at the crime scene. He

photographed the exterior and interior of the victim’s house. He

found broken glass from the basement window both outside the house and in the basement. On a table next to the victim were

several items including a check that was filled out and dated

January 2, 1993. In the bedroom was a chest that appeared to have

been pried open. He recovered fingerprints inside of the house, but

did not find any fingerprints on the broken glass of the basement

window or the area surrounding the window. Subsequent

laboratory testing did not reveal any fingerprints on the window

frame. On the basement floor below the broken window, Hogle

saw only dust. He did not remember seeing mud, grass, or any

other material from the outside. Hogle believed that the point of

entry was the broken basement window.

	The victim’s daughters, Barbara Johannessen-Bailey and

Karen Johannessen, examined the house shortly after the murder.

Barbara noted that some of the victim’s jewelry was missing.

	At approximately 2:30 p.m., Captain Michael Anderson of the

Kane County sheriff’s department found the victim’s car, a 1984

blue Oldsmobile Delta 88, in the parking lot of an Eagle Food

Store approximately one mile from the victim’s home. A store

employee saw the car on January 3, 1993, at 4 a.m. when he

arrived for work. The car was towed to the sheriff’s department.

An evidence technician found in the car a “hatchet/hammer”

(hereafter hammer). It did not have any fingerprints.

	On May 2, 1995, Donald Lippert, defendant’s alleged

accomplice, spoke with Captain Anderson. At defendant’s trial,

Donald was called to testify for the State. Donald understood that

in exchange for his truthful testimony, he would receive a prison

term totaling 80 years for crimes committed in Kane and Du Page

Counties, with the possibility that the trial court might sentence

him as guilty but mentally ill. Defendant requested a competency

hearing, which was held outside of the presence of the jury. At the

close of the hearing, the trial court found that Donald was

competent to testify.

	Donald testified that Leslie Lippert was his father and that

defendant was his cousin. After identifying defendant, Donald

further testified as follows. He “vaguely” remembered the events

of January 1993. He remembered living at 759 Austin Avenue in

Aurora with his father, defendant, and his brother Michael. He

remembered committing a burglary at a small white house on Felton Street. When shown photographs of the victim’s house,

Donald testified that it could have been the house that he

burglarized.

	On the night in question, Donald and “Chris Nelson,” whom

Donald knew as defendant, walked to the small white house to

burglarize it. Donald believed that defendant had chosen the house.

Defendant was armed with a .22-caliber handgun. Donald had

never been in that house before or after that date.

	Defendant broke a window and pulled the window frame out

of the structure. At defendant’s direction, Donald entered the

house by crawling through the window. Donald, intoxicated from

alcohol and drugs, crawled out because he was frightened by the

dark and the noise of a washing machine. Donald told defendant

that he was not reentering the house and told defendant to do it.

Defendant instructed Donald to go to the front of the house and

stand guard. Donald then believed that no one was at home.

	Donald went to the front of the house and looked in the

window. Donald saw defendant approach an old lady facing a

table; defendant was pointing a gun at the back of her head. Donald

heard a gunshot. He ran back to the broken window, entered the

basement, and went into the living room. The woman had been

shot in the back of the head, her chin resting on her chest. Donald

told defendant that the woman apparently was still alive. Defendant

picked up a hammer, tilted the woman’s head back, and hit her on

the forehead.

	Defendant told Donald to look for “jewelry, money, anything

valuable.” Donald took jewelry from the bedroom and put it into

a pillowcase. After they looked through the house, they exited

through the broken window. They went to the victim’s garage,

where they found her car. Defendant gave Donald a car key and

they entered the car. Donald drove to the Eagle Food Store and

parked in the lot. They walked to the Lippert home and hid the

stolen property in the yard. They moved the items later that night

or the next day. At trial, Donald acknowledged that the woman

was the victim, and that he never received permission from anyone

to enter the victim’s house. Donald did not know what became of

the hammer.

	Donald identified several pieces of the victim’s property as

those that he stole. He testified that the hammer found in the

victim’s car resembled the hammer with which defendant hit the

victim. However, Donald also stated that he had seen the hammer

around his house after the crime.

	Cross-examination revealed that on the night in question,

Donald, who is diabetic, was taking insulin in addition to alcohol

and drugs. He did not remember many details regarding the broken

window and the basement interior. However, he did remember that

the window was small and difficult to pass through and that he had

to climb over a “[b]unch of garbage” near the window.

	Michael Lippert also testified for the State. According to

Michael, he and defendant had a conversation in January 1993 in

which defendant made the following inculpatory remarks.

Defendant had seen “an old lady living in this white house off of

Sheffer Road.” A few days later, he and Donald went to the

victim’s house. Donald entered through the basement window and

let defendant in through the back door. “Then [defendant] shot her

in the back of the head with a .22 caliber handgun.” Defendant also

told Michael: “They [defendant and Donald] took jewelry, any

valuable old stuff, and they took the car, her car, to the Eagle’s

parking lot, parked it there and brought all the stuff back to the

house. That was it.”

	When Lieutenant Peter Burgert of the Kane County sheriff’s

department first questioned Michael in August 1994, Michael

denied knowledge of defendant’s involvement in this crime.

Michael did so because defendant had threatened his life. However,

in May 1995, Michael went to Captains Anderson and Robert

Cannon and related defendant’s inculpatory remarks. Referring to

his knowledge of the murder, Michael testified that “it was on my

chest for too many years and I wanted to get it off my chest.” He

also felt sympathy for the victim’s family. Michael additionally

testified that he was a former member of a street gang and, at the

time of defendant’s inculpatory remarks, he smoked marijuana “a

lot” and took cocaine occasionally. However, Michael was not

under the influence of any drug during his conversation with

defendant.

	Dr. Shaku Teas performed an autopsy on the victim. Dr. Teas

determined that the victim had been dead between 24 and 72 hours.

The cause of death was a gunshot wound to the back of the head.

Dr. Teas removed two fragments of a small-caliber bullet. The

victim also had a crescent-shaped wound to the forehead.

According to Dr. Teas, it was unlikely that the forehead wound

was an attempted exit wound. Rather, the forehead wound was

consistent with being struck with a hammer, including the hammer

recovered from the victim’s car. However, Dr. Teas could not

identify that particular hammer as the cause of the forehead wound.

	Subsequent laboratory testing revealed that the two fragments

removed from the victim’s head were from a .22-caliber bullet.

However, the fragments were in such poor condition that it was

impossible to connect them to a specific gun.

	Leslie Lippert testified for the State as follows. In January

1993, he lived at 759 Austin Avenue in Aurora. Lippert’s house

was 630 feet from where the victim’s car was found. Leslie lived

with his sons, Michael and Donald, and with defendant, who is his

nephew.

	In the spring of 1993, they moved out of their house on Austin

Avenue. Prior to moving, Leslie rented space at a storage facility

in St. Charles. Michael, Donald, and defendant each put their own

items in boxes and other containers. According to Leslie, each

labeled his boxes with his name; however, some of the boxes did

not have any identification marks. Also, most of the containers

were not sealed. Leslie loaded the items onto his pickup truck,

drove to the storage facility, and placed the items in two storage

lockers. Only Leslie had access to these stored items.

	On May 8, 1995, Leslie Lippert went to the Kane County

sheriff’s department and met with Captains Anderson and Cannon.

He feared being charged with possession of stolen property. The

officers arranged a meeting with the State’s Attorney. The next

day, Leslie returned to the sheriff’s office. He, Cannon, and

Anderson went to the State’s Attorney’s office, where Leslie

obtained assurances that he would be held harmless for any stolen

items that may have been in storage.

	Leslie then took the officers to the West Chicago house where

he then lived with his son Michael and others. Leslie gave the officers a box containing items that he received from defendant at

their prior home in Aurora. The items included several forms of

false identification with the name Christopher Nelson. According

to Leslie, defendant sometimes used that name.

	Leslie took the officers to the storage facility. Accompanying

them were several additional officers in another car and a pickup

truck. Leslie unlocked the padlocks to the two lockers, which were

filled with boxes and other items. The boxes were not sealed; either

they were open at the top or, at the most, their flaps were tucked

in. When the officers selected a container, Leslie looked at its

contents and identified their owner. Only one box was labeled; that

box had “Ed” written on it. In this box were various items

including a sealed envelope containing three photographs of

defendant’s girlfriend. Also in storage was a dresser that, according

to Leslie, defendant used. Its drawers were shut but not locked.

The search and inventory were photographed and videotaped.

	In May 1995, the victim’s daughters identified the following

items as belonging to the victim. From the box labeled “Ed,” they

identified a radio, a wind-up clock, maps inscribed by the victim,

a pair of binoculars, and a folding travel alarm clock. From the

dresser found at the storage facility, they identified a case

containing a class ring and a can of pepper spray or mace. In

another box found in storage, there were several boxes containing

jewelry, various pieces of which they identified as the victim’s

property.

	The State presented the following stipulated evidence.

Seventeen latent fingerprints suitable for comparison were obtained

from the victim’s home and car, and hairs were recovered from the

victim’s car. None could be matched to defendant or Donald, or to

Lionel Lane, Lester Salter, Corey Jenkins, or Michael Turner. The

latter four we shall discuss later. The State rested its case.

	The defense asserted that the State failed to prove defendant

guilty of the charged offense beyond a reasonable doubt. The

theory of the defense was that the true murderers were Lionel

Lane, Lester Salter, Corey Jenkins, and Michael Turner. Lane was

charged, tried, and convicted of the victim’s murder in 1995.

However, when defendant was charged with committing the crime,

Lane’s conviction was vacated on the State’s motion. The defense presented several witnesses in support of its theory. The evidence

that defendant presented consisted of much of the evidence that the

State presented at Lane’s trial.

	Defendant’s evidence at trial was essentially as follows. In July

1993, Lieutenant Peter Burgert of the Kane County sheriff’s

department interviewed Lane. On November 2, 1993, Burgert had

a conversation with Lorie Mohle, who was Lane’s ex-girlfriend.

Burgert again interviewed Lane expressly regarding the victim’s

death.

	On November 27, 1993, in the course of his investigation,

Lieutenant Burgert photographed an automobile belonging to

Michael Turner. It was a Plymouth Sundance that was “cream and

tan, maybe some brown in it.” On December 23, after again

speaking with Mohle, Burgert, she, and another detective went to

the victim’s house and parked about 100 feet away. In April 1994,

Burgert and other officers returned to the victim’s house and

parked at the same location. Some officers entered the victim’s

house and fired a gun several times. Those remaining in the car

could hear the gun while the engine was running, the windows

were down, and the radio was on; and also when the engine was

off, the windows were up, and the radio was off.

	Oscar Dorrise was an inmate at the East Moline Correctional

Center. In late May 1994, he was in the Kane County jail in the

same cellblock as Lionel Lane, whom he did not previously know.

At their first meeting, Lane said that “he had a lot of things on his

mind” and asked Dorrise if Lane could trust him. Dorrise answered

in the affirmative. Lane said that he had shot an “older lady” in the

head in a house in Aurora.

	In October 1994, Dorrise was released from jail on bond. He

received a visit from Lieutenant Burgert. As a result of their

conversation, Dorrise related Lane’s confession to Burgert. At the

time of this conversation, charges were still pending against

Dorrise. Although Dorrise believed that Lieutenant Burgert could

“help” Dorrise with his pending charges, Burgert did not intervene.

Dorrise received nothing in return for his testimony at Lane’s trial.

Further, his testimony for defendant was the same testimony that

he gave for the State at Lane’s trial.

	The State adduced the following additional evidence on cross-

examination. Dorrise had four prior felony convictions: two

robbery convictions and convictions of burglary and unlawful use

of weapons. At Lane’s trial, Dorrise testified that Lane had

confessed to him in July 1994, when he and Lane were not in the

same cellblock. Lieutenant Burgert gave Dorrise $50 and informed

him of a reward for information leading to the arrest of the victim’s

killer. However, Burgert did not offer or give Dorrise a reward for

his testimony at Lane’s trial. Burgert ceased being involved in the

case in January 1995.

	Lorie Mohle was unavailable for defendant’s trial. The court

ruled that her prior sworn, in-court testimony for the State at

Lane’s trial was admissible. The State lodged hearsay objections to

portions of the transcript of Mohle’s testimony. Defendant’s trial

counsel argued that all of Mohle’s prior testimony was admissible.

The trial court ruled that portions of Mohle’s prior testimony

would not be admitted. The court excluded, inter alia, a conversation that Mohle had with Lane, in which he made

inculpatory remarks that exculpated defendant.

	The following prior testimony of Mohle from Lane’s trial was

read to the jury at defendant’s trial. Mohle lived with her children

and Lane at 1665 Felton Road in Aurora. Mohle knew Lane’s

friends: Lester Salter, Corey Jenkins, and Michael Turner. On the

afternoon of January 2, 1993, Salter, Turner, Mohle, and another

went to a store to steal athletic shoes. Turner drove his brown,

four-door, mid-size car. After they accomplished their objective,

Mohle placed the shoes in the trunk of Turner’s car. There, she

saw a holster and the butt of a gun.

	Later that evening, Mohle asked Turner to take her to the

Eagle Food Store. Turner drove Mohle and her children, Lane,

Salter, and Jenkins to the store. Mohle went into the store, while

the others remained in the car. Mohle returned to the car and

placed her grocery bags by her feet. On the way home, Turner

pulled over on Felton Road. Lane, Salter, and Jenkins exited the

car, saying that they would return shortly. She did not see where

they went. Mohle, her children, and Turner waited in the car with

the engine off and the windows rolled up. Mohle heard a gunshot;

she grabbed her children and groceries and walked home.

	Lane eventually returned home, acting “jittery.” Mohle did not

ask him what had happened. She did not hear of the victim’s

murder for approximately one or two months. In April or May

1993, Salter, Jenkins, and Turner came over and spoke with Lane.

After they left, Mohle asked Lane what was happening, and Lane

instructed Mohle not to ask any questions. Mohle also testified that

in 1993 she was undergoing drug treatment, and that no one had

made any promises to her to obtain her testimony.

	The defense presented the following stipulated evidence. Dr.

Teas testified at Lane’s trial that the wound to the victim’s

forehead was a partial exit wound. However, Dr. Teas formed this

opinion prior to being told that a hammer might have caused the

forehead wound.

	On January 9, 1993, the victim’s daughter Barbara told a

police detective that the hammer, found in the victim’s car,

belonged to the victim. She kept it under the driver’s seat; it had

been there for some time.

	When the Eagle Food Store closed at 11 p.m. on January 2,

1993, Robert Foley, a store employee, saw a black, hatchback-type

vehicle on the premises. It was the only vehicle there except for

employees’ cars. He left the store at 12:05 a.m. on January 3 and

observed the same car and no others.

	On the night of January 2, 1993, Peter Popp, the victim’s

neighbor, and his sister Mary were at home, sitting on an enclosed

porch. They saw a dark-colored, large vehicle turn onto Felton

Road and into the victim’s driveway. They paid no attention to it

because they assumed that it was the victim returning home.

	At the close of the evidence in defendant’s trial, the jury

returned a general verdict of guilty of first degree murder.

	In the eligibility phase of the death sentencing hearing, the jury

heard, inter alia, the following stipulation: defendant was convicted of the Oberweis murder as a result of being legally

accountable for the conduct of Donald, who performed the acts

that caused Oberweis’ death. The jury found beyond a reasonable

doubt the presence of three statutory aggravating factors:

defendant was convicted of murdering two or more persons (see

720 ILCS 5/9–1(b)(3) (West 1992)); the murder was committed in

the course of a felony, namely, residential burglary (see 720 ILCS 5/9–1(b)(6) (West 1992)); and the victim was murdered in a cold,

calculated, and premeditated manner pursuant to a preconceived

plan, scheme, or design to take a human life by unlawful means

(see 720 ILCS 5/9–1(b)(11) (West 1992)).

	At the second stage of the death sentencing hearing, following

the presentation of evidence in aggravation and mitigation, the jury

found that there were no mitigating circumstances sufficient to

preclude imposition of the death penalty. The trial court

accordingly sentenced defendant to death on the Johannessen

murder conviction. We note that the court subsequently sentenced

defendant to an extended prison term of natural life on the

Oberweis murder conviction.

	Defendant appeals from his conviction and sentence regarding

the Johannessen murder. Additional pertinent facts will be

discussed in the context of the issues raised on appeal.

DISCUSSION

I. Sufficiency of the Evidence

	Defendant contends that the evidence was insufficient to prove

him guilty beyond a reasonable doubt. A criminal conviction will

not be set aside on appeal unless the evidence is so improbable or

unsatisfactory that there remains a reasonable doubt of the

defendant’s guilt. The question on review is whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational fact finder could have found defendant guilty beyond a

reasonable doubt. People v. Brown, 185 Ill. 2d 229, 247 (1998); People v. Eyler, 133 Ill. 2d 173, 191 (1989). We note that this standard of review applies in all criminal cases, whether the

evidence is direct or circumstantial. People v. Gilliam, 172 Ill. 2d 484, 515 (1996); People v. McDonald, 168 Ill. 2d 420, 444 (1995). Applying this standard to the present case, we must

conclude that there was sufficient evidence to support defendant’s

conviction.

	Defendant argues that the testimony of his accomplice Donald

“was confused, conflicted, and unworthy of belief.” Defendant

points to “numerous instances where he [Donald] does not

understand questions, pauses for long periods of time and continually qualifies his testimony with ‘I think’ and ‘I believe.’ ”

Defendant also argues that Donald’s testimony “was substantially

impeached by his prior record and his plea agreement with the

prosecutor.”

	Defendant also attacks the credibility of Donald’s brother,

Michael Lippert. Defendant points to inconsistencies between

Michael’s testimony and the other evidence. Defendant argues that

Michael would support Donald’s version of events to save Donald

from the death penalty. According to defendant, these facts would

cast doubt on the veracity of Michael’s testimony.

	When considering a challenge to the sufficiency of the

evidence of a defendant’s guilt, it is not the function of this court

to retry the defendant. People v. Smith, 177 Ill. 2d 53, 73 (1997); McDonald, 168 Ill. 2d at 443. Rather, it is the function of the jury as the trier of fact to assess the credibility of the witnesses, the

weight to be given their testimony, and the inferences to be drawn

from the evidence. It is also for the trier of fact to resolve conflicts

or inconsistencies in the evidence. People v. Bull, 185 Ill. 2d 179, 204-05 (1998); People v. Young, 128 Ill. 2d 1, 51 (1989). “A conviction will not be reversed ‘simply because the defendant tells

us that a witness was not credible.’ ” People v. Brown, 185 Ill. 2d 229, 250 (1998), quoting People v. Byron, 164 Ill. 2d 279, 299 (1995). Therefore, this court will not substitute its judgment for

that of the jury on questions involving the weight of the evidence

or the credibility of the witnesses. McDonald, 168 Ill. 2d at 448- 49; Young, 128 Ill. 2d at 51. Defendant’s arguments against Donald and Michael address functions of the jury and not of this

court.

	Having heard Donald’s testimony, the jury was fully aware of

its alleged infirmities. The jury knew of Donald’s criminal

background and of his plea agreement with the State. The trial

court instructed the jury that accomplice testimony was subject to

suspicion and, therefore, should be viewed with caution. See

Illinois Pattern Jury Instructions, Criminal, No. 3.17 (3d ed. 1992).

It was the jury’s function to draw conclusions based on the

evidence and to decide whether there was a reasonable doubt as to

defendant’s guilt.

	Defendant also argues that he “presented a more credible

case” that Lane, Jenkins, and Salter actually murdered the victim.

Defendant notes that he presented much of the evidence presented

by the prosecution in Lane’s trial for this offense, which resulted in

Lane’s conviction. However, an assertion that another person

committed the offense does not necessarily raise a reasonable

doubt as to the guilt of the accused. See People v. Manning, 182 Ill. 2d 193, 211 (1998). “The jury in this case was not required to

accept any possible explanation compatible with the defendant’s

innocence and elevate it to the status of reasonable doubt.” People v. Herrett, 137 Ill. 2d 195, 206 (1990); accord McDonald, 168 Ill. 2d at 447.

	Defendant contends that Donald’s testimony “was not

corroborated in any significant manner.” Defendant argues that

there is no corroboration that he accompanied Donald to the

victim’s house that night. Defendant posits that Donald could have

committed the offense alone, or with someone other than

defendant. Defendant also contends that no physical evidence

corroborated Donald’s testimony or otherwise linked defendant to

the victim’s murder.

	We recognize that the testimony of an accomplice witness has

inherent weaknesses and should be accepted only with caution and

suspicion. Nevertheless, the testimony of an accomplice witness,

whether corroborated or uncorroborated, is sufficient to sustain a

criminal conviction if it convinces the jury of the defendant’s guilt

beyond a reasonable doubt. Smith, 177 Ill. 2d at 74; accord Young, 128 Ill. 2d at 47-48.

	In this case, Donald’s testimony was sufficient to sustain

defendant’s conviction. Donald knew details of the crime that only

a person present at the crime scene could know. Additionally, other

evidence presented at trial corroborated Donald’s testimony in

several respects. The victim’s physical injuries were consistent with

Donald’s testimony. Defendant confessed his involvement in the

crime to Michael Lippert. Also, many of the victim’s belongings

were found in storage, in the box labeled “Ed” and in the dresser

that defendant used.

	We note that this case is distinguishable from People v. Smith, 185 Ill. 2d 532 (1999). In Smith, we agreed with the defendant “that the weakness of the State’s chief witness, along with the lack

of other direct evidence linking defendant to the crime, required a

not guilty verdict as a matter of law.” Smith, 185 Ill. 2d at 542.  There was only one witness who identified defendant as the

gunman. Based on the serious inconsistencies in, and the repeated

impeachment of, her testimony, we found that no reasonable trier

of fact could have found her testimony credible. Further, we

concluded that the circumstantial evidence that purportedly linked

the defendant to the murder merely narrowed the class of

individuals who may have killed the victim, but did not point

specifically to the defendant. Smith, 185 Ill. 2d at 545.

	In this case, however, we conclude that Donald’s testimony

was sufficient to sustain defendant’s conviction. Also, the other

evidence presented at trial sufficiently linked defendant to the

murder.

	We have reviewed all of the evidence presented in defendant’s

trial in the light most favorable to the prosecution. We note that the

evidence against defendant was not overwhelming. However, we

conclude that a rational trier of fact could have found defendant

guilty beyond a reasonable doubt.

II. Lionel Lane’s Excluded Hearsay Statement

	Defendant next contends that the trial court erred in excluding

an out-of-court statement of Lionel Lane. Following a trial, Lane

was convicted of the victim’s murder. However, Lane’s conviction

was vacated on the State’s motion when defendant was charged

with the crime.

	In this case, the record shows that during several months prior

to trial, defense counsel, the State, and the trial court had several

discussions regarding the whereabouts of Lane and Mohle. The

defense, with the cooperation of the State, diligently and in good

faith attempted to locate Lane and Mohle, without success.

	Each side presented a motion in limine regarding Lorie Mohle’s testimony at Lane’s trial. Defendant sought the admission

at his trial of Mohle’s entire testimony, and the State sought its

exclusion on hearsay grounds. Initially, the trial court excluded

Mohle’s entire prior testimony. However, the court granted a subsequent motion to reconsider, ruling that Mohle’s testimony

was admissible at defendant’s trial because it was given under oath

and subject to cross-examination at Lane’s trial (see M. Graham,

Cleary & Graham’s Handbook of Illinois Evidence §804.4 (7th ed.

1999)). The trial court allowed an edited version of Mohle’s prior

testimony to be read to the jury at defendant’s trial. The court

excluded portions of Mohle’s prior testimony on hearsay grounds,

including a conversation between Mohle and Lane, in which Lane

made inculpatory remarks that exculpated defendant.

	We earlier recounted Mohle’s testimony regarding the actions

of herself, Lane, Lester Salter, Corey Jenkins, and Michael Turner

on the night of January 2, 1993. The following additional, edited

testimony of Mohle was read to the jury at defendant’s trial. In

September 1993, Mohle and Lane moved from Felton Road to

another address in Aurora. One day during that time, Mohle heard

an automobile horn and looked out of her window. She saw Salter

and Turner in a car. Lane went out to the car, spoke with them for

approximately 10 to 15 minutes, and came back inside to Mohle.

	However, the jury did not hear Mohle’s testimony regarding the following conversation:

			“Q. And after he got back in the house, did you ask him

a question?

			A. Yes, I asked him what the hell is going on here.

			Q. And what did he tell you?

			A. He said that him and Salter and Corey had went into

the lady’s, Johannessen’s house, Mrs. Johannessen’s

house.

			Q. Did he tell you what happened in there?

			A. He said they were ransacking the house trying to

look for jewelry, money, something that they could sell to

get money. The lady kept screaming and screaming and

Salter kept telling her to be quiet, be quiet.

			Q. Did he tell you what Salter did?

			A. He said that he shot her.

			Q. He meaning?

			A. Salter.

			Q. Did he tell you where he shot her?

			A. No.

			Q. Did he tell you where on the body she was shot?

			A. No.

			Q. Did he tell you if they took anything?

			A. No, he did not tell me if they took anything.

			Q. Did he tell you how they got in?

			A. No.

			Q. Did he tell you who went in?

			A. Him, Lionel Lane; Lester Salter and Corey Jenkins.

			Q. Did he say who remained out?

			A. No.

			Q. Now, did you know what day he’s talking about?

			A. I put two and two together, yes.”

Defendant contends that the trial court’s exclusion of this

conversation denied him a fair trial.

	Defendant argues that Lane’s statements fell within the

statement-against-penal-interest exception to the hearsay rule.

“Hearsay evidence is an out-of-court statement offered to prove

the truth of the matter asserted, and it is generally inadmissible due

to its lack of reliability unless it falls within an exception to the

hearsay rule.” People v. Olinger, 176 Ill. 2d 326, 357 (1997); accord Chambers v. Mississippi, 410 U.S. 284, 298-99, 35 L. Ed. 2d 297, 310-11, 93 S. Ct. 1038, 1047 (1973). A hearsay exception

applies to declarations against interest. The exception is founded

on the assumption that a person is unlikely to fabricate a statement

against his or her own interest. Chambers, 410 U.S. at 299, 35 L. Ed. 2d at 311, 93 S. Ct. at 1047-48; see generally M. Graham,

Cleary & Graham’s Handbook of Illinois Evidence §804.7 (7th ed.

1999); 2 J. Strong, McCormick on Evidence §§316 through 320

(4th ed. 1992).

	“[C]onventional doctrine required that the statement be

contrary to the pecuniary or proprietary interest of the declarant

***.” M. Graham, Cleary & Graham’s Handbook of Illinois

Evidence §804.7, at 883 (7th ed. 1999); accord 2 S. Gard, Jones

on Evidence §9:9, at 205 (6th ed. 1972). Although “the subject of considerable scholarly criticism,” “[i]t is believed that confessions

of criminal activity are often motivated by extraneous

considerations and, therefore, are not as inherently reliable as

statements against pecuniary or proprietary interest.” Chambers, 410 U.S. at 299-300, 35 L. Ed. 2d at 311, 93 S. Ct. at 1048.

Accordingly, 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. Such a declaration will be admitted,

however, where justice requires. People v. Pecoraro, 175 Ill. 2d 294, 306 (1997); People v. Bowel, 111 Ill. 2d 58, 66 (1986). This court has explained:

		“The practicality of this rule is obvious. General admission

of such statements could seriously handicap the

administration of justice in tempting everyone accused of

crime to introduce perjured testimony that a third party,

then deceased or beyond the jurisdiction of the court, had

declared that he, and not the accused, had committed the

crime. The rule is sound and should not be departed from

except in cases where it is obvious that justice demands a

departure. But it would be absurd, and shocking to all

sense of justice, to indiscriminately apply such a rule to

prevent one accused of a crime from showing that another

person was the real culprit merely because that other

person was deceased, insane or outside the jurisdiction of

the court.” People v. Lettrich, 413 Ill. 172, 178 (1952).

	Where constitutional rights that directly affect the

ascertainment of guilt are implicated, the hearsay rule may not be

mechanically applied to defeat the ends of justice. Therefore, where

hearsay testimony bears persuasive assurances of trustworthiness

and is critical to the accused’s defense, its exclusion deprives the

defendant of a fair trial in accord with due process. Chambers, 410 U.S. at 302, 35 L. Ed. 2d at 313, 93 S. Ct. at 1049; People v. Thomas, 171 Ill. 2d 207, 215-16 (1996). Such testimony may be admissible under the statement-against-penal-interest exception to

the hearsay rule. Bowel, 111 Ill. 2d at 66.

	In Chambers, the defendant was prevented under Mississippi’s evidentiary rules from cross-examining McDonald, who had confessed to the crime but subsequently recanted, and introducing

the testimony of witnesses to McDonald’s confessions. The United

States Supreme Court reversed the conviction because the indicia

of trustworthiness of McDonald’s confession were so

overwhelming that exclusion of evidence of the confession violated

fundamental fairness. McDonald was not a codefendant, had

spontaneously confessed the crime to close friends on three

separate occasions within 24 hours of its occurrence, and gave a

subsequent sworn confession. Also, one eyewitness stated that he

saw McDonald shoot the victim, and another stated that he had

seen McDonald holding a gun immediately after the shooting; thus,

each confession was corroborated by some other evidence. Finally,

McDonald was available as a witness and could have been cross-

examined. Chambers, 410 U.S. at 287-301, 35 L. Ed. 2d at 304- 12, 93 S. Ct. at 1041-49.

	Chambers 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. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49. The Chambers factors are merely guidelines to admissibility rather than hard and

fast requirements; the presence of all four factors is not a condition

of admissibility. Pecoraro, 175 Ill. 2d at 307; see People v. Keene, 169 Ill. 2d 1, 29 (1995). “Rather, the question to be considered in

deciding the admissibility of such an extrajudicial statement is

whether it was made under circumstances which provide

‘considerable assurance’ of its reliability by objective indicia of

trustworthiness. [Citation.]” Thomas, 171 Ill. 2d at 216.

	We note that the holding in Chambers is narrow. In reaching its judgment, the Court stressed:

		“[W]e establish no new principles of constitutional law.

Nor does our holding signal any diminution in the respect

traditionally accorded to the States in the establishment

and implementation of their own criminal trial rules and

procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial

court deprived Chambers of a fair trial.” Chambers, 410 U.S. at 302-03, 35 L. Ed. 2d at 313, 93 S. Ct. at 1049.

Other courts have recognized this narrow holding. See, e.g., Jones v. State, 709 So. 2d 512, 524-25 (Fla. 1988); State v. Sharlow, 110 Wis. 2d 226, 234, 327 N.W.2d 692, 696 (1983).

	“Chambers did not do away with the hearsay rule. The Supreme Court contemplated that the [trial] judge would be a

gatekeeper, that unreliable statements could be excluded. *** It did

not abolish the hearsay rule on constitutional grounds.” Lee v. McCaughtry, 933 F.2d 536, 538 (7th Cir. 1991). Thus, “Federal and State courts have expressed the belief that Chambers has not significantly trammeled judicial discretion to exclude unreliable

declarations against penal interest.” Commonwealth v. Carr, 373 Mass. 617, 625, 369 N.E.2d 970, 975 (1977). The admission of

evidence is within the sound discretion of the trial court, and its

ruling should not be reversed absent a clear showing of abuse of

that discretion. Thomas, 171 Ill. 2d at 218; Bowel, 111 Ill. 2d at 68.

	Applying these principles to the present case, we conclude that

Lane made his hearsay statement to Mohle under circumstances

that provide considerable assurance of its reliability. We will

discuss the Chambers factors in order of their significance in this case.

	The third Chambers factor is satisfied. Lane’s statement was self-incriminating and against his penal interest. “As a statement of

such a nature is the bedrock for the exception, that factor,

obviously, must be present.” Keene, 169 Ill. 2d at 29. A declaration against penal interest is one that would be admissible against the

declarant in a criminal prosecution; it need not be a confession, but

must involve exposure to criminal liability. 2 J. Strong, McCormick

on Evidence §319(b), at 323-24 (5th ed. 1999); accord Fed. R.

Evid. 804(b)(3) (the declaration, at the time of its making, must

tend to subject the declarant to criminal liability, so that a

reasonable person in the declarant’s position would not have made

the statement unless the declarant believed it to be true). “Whether

a statement is actually against the declarant’s interest must be

determined from the circumstances of each case.” People v. Caffey, No. 86975, slip op. at 29 (October 18, 2001). In this case,  Lane told Mohle that he participated in the home invasion of the

victim’s residence, which was a felony. In the course of that felony,

the victim was murdered, for which Lane is accountable. See 720

ILCS 5/5–2(c), 9–1(a)(3) (West 1992). “No credible argument

could be made that making that declaration was not against his

penal interest.” People v. Rice, 166 Ill. 2d 35, 47 (1995) (Harrison, J., dissenting, joined by Bilandic, C.J., and McMorrow, J.).

	The second Chambers factor is satisfied. It must be remembered that this factor requires only that the statement be

corroborated by “some other evidence in the case.” Chambers, 410 U.S. at 300, 35 L. Ed. 2d at 312, 93 S. Ct. at 1048. As one court

has noted:

			“In determining whether the declarant’s statement has

been sufficiently corroborated to merit its admission in

evidence, the judge should not be stringent. *** If the

issue of sufficiency of *** corroboration is close, the

judge should favor admitting the statement. In most such

instances, the good sense of the jury will correct any

prejudicial impact.” Commonwealth v. Drew, 397 Mass. 65, 75 n.10, 489 N.E.2d 1233, 1241 n.10 (1986).

Accord United States v. Garcia, 986 F.2d 1135, 1141 (7th Cir. 1993) (“The district judge does not need to be completely

convinced that exculpatory statements are true prior to their

admission. Such a high burden was not intended by the

corroboration requirement of [Fed. R. Evid.] 804(b)(3). The

district court must find only that sufficient corroborating

circumstances exist and then permit the jury to make the ultimate

determination concerning the truth of the statements”); accord 2 J.

Strong, McCormick on Evidence §319(e), at 328-29 (5th ed.

1999).

	In this case, the trial court did not consider Lane’s hearsay

statement to be corroborated. However, the record contains

evidence, independent of Mohle’s testimony, that corroborated

Lane’s hearsay statement. Lane told Mohle that he, with Salter and

Jenkins, entered the victim’s residence looking for items to steal.

The State presented evidence that the victim’s home was broken

into and that personal property was stolen. Lane told Mohle that there was a lone woman present when they entered the house; the

State presented evidence that the victim was at home and there was

no evidence of any other occupant or visitor. Lane told Mohle that

Salter shot the woman in the house; the State presented evidence

that the victim was shot. In addition to this evidence, it must be

remembered that Mohle gave this testimony at Lane’s trial, under

oath and subject to cross-examination. Mohle testified that Turner

drove a brown car on the night of the homicide; it was stipulated

that the victim’s neighbors saw a dark-colored vehicle pull up into

the victim’s driveway. Also, Mohle identified the victim’s residence

as the house where the murder occurred. Lane’s hearsay statement

was corroborated as contemplated by Chambers. Our conclusion is in accord with other decisions in which extrajudicial declarations

inculpating the declarants and exculpating the defendants were

found to be sufficiently corroborated to be admissible as

declarations against penal interest. See, e.g., United States ex rel. Gooch v. McVicar, 953 F. Supp. 1001, 1009-10 (N.D. Ill. 1997); Thomas v. State, 580 N.E.2d 224, 227 (Ind. 1991); Lacy v. State, 700 So. 2d 602, 607-08 (Miss. 1997); People v. Robinson, 267 A.D.2d 336, 337, 700 N.Y.S.2d 203, 204 (1999); Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994).

	Regarding the first Chambers factor, Lane made the statement spontaneously to a close acquaintance, i.e., Mohle. The relationship between the declarant and the testifying witness to

whom the declarant spoke, and the circumstances surrounding the

declaration, are factors of reliability. A statement made to a law

enforcement officer may be made in an attempt to curry favor and

obtain a reduced sentence; it may also be the product of coercion

or force and be involuntary. Such a statement might not be as

reliable as a statement made to a good friend or family member.

State v. LaGrand, 153 Ariz. 21, 27, 734 P.2d 563, 569 (1987). In this case, the trial court did not view the statement as spontaneous

because it was in response to Mohle’s demand for an explanation.

We cannot accept this reasoning. Mohle merely asked Lane what

was going on. This single, simple question did not rob Lane’s

statement of spontaneity. This circumstance is distinguishable from

that found in cases such as People v. Hampton, 249 Ill. App. 3d 329, 337 (1993), where the hearsay statement was made in

response to comments and pointed questioning. There is no evidence to suggest that Lane’s statement was coerced or

rehearsed.

	The statement was made spontaneously and to a close

acquaintance, which provide additional indicia of reliability.

However, Lane did not make the statement shortly after the

victim’s murder, but rather nine months subsequent to the crime.

Accordingly, the first Chambers factor is not satisfied.

	The fourth Chambers factor is not satisfied. Lane was not available for cross-examination. However, “the presence of all four

factors is not a condition of admissibility. They are indicia, not hard

and fast requirements.” House, 141 Ill. 2d at 390. “The question to be considered in judging the admissibility of a declaration of this

character is whether the declaration was made under circumstances

that provide ‘considerable assurance’ of its reliability by objective

indicia of trustworthiness.” People v. Bowel, 111 Ill. 2d 58, 67 (1986), quoting Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49.

	The unique and rare circumstances surrounding this case

provide Lane’s hearsay statement with an additional indicium of reliability. As defendant’s trial counsel noted, it must be

remembered that the State previously prosecuted Lane for this

crime and obtained his conviction. In this case, the State conceded

that Lane did not testify at his trial. At Lane’s trial, the State

presented Mohle’s testimony–including Lane’s hearsay

statement–as part of the State’s case against Lane. In this case,

defendant’s trial counsel cogently argued that it would be

anomalous for the State to now oppose admission of Lane’s

hearsay statement for defendant because the State used the same

evidence to convict Lane.

	The United States Court of Appeals for the Seventh Circuit

has concluded:

		“How reliable must hearsay be to fit the Chambers approach? We concluded in Rivera v. Director, Department of Corrections, 915 F.2d 280, 282 (7th Cir. 1990), that if a confession is sturdy enough for the state to

use in its own case–if it is the sort of evidence that

prosecutors regularly use against defendants–then defendants are entitled to use it for their own purposes.”

(Emphasis in original.) Lee, 933 F.2d at 537.

Accord Pettijohn v. Hall, 599 F.2d 476, 481 (1st Cir. 1979) (reasoning that if evidence “is sufficiently reliable for prosecutorial

use, the state cannot claim that it is too unreliable when offered by

the defendant”); Woods v. State, 101 Nev. 128, 135, 696 P.2d 464, 468 (1985) (same). We agree with these principles. Based on the

totality of the circumstances, it was “shocking to all sense of

justice” (Lettrich, 413 Ill. at 178), to apply the hearsay rule to bar admission of Lane’s declaration against penal interest at

defendant’s trial, which concluded with defendant being sentenced

to death.

	Earlier in this opinion, we considered whether the evidence

was sufficient to prove defendant’s guilt beyond a reasonable

doubt. Although we found that the evidence was sufficient to

support the guilty verdict, we noted that the evidence against

defendant was not overwhelming. No fingerprints or hairs could be

matched to defendant. We recounted the alleged infirmities in

Donald’s testimony, including his prior record and his plea

agreement with the State. Also, there was little corroboration that

defendant accompanied Donald to the victim’s house. Because the

evidence against defendant was not overwhelming, we cannot say

that the exclusion of Lane’s hearsay statement did not affect the

outcome of defendant’s trial.

	Therefore, we conclude that Lane’s hearsay statement was

made under circumstances that provide considerable assurance of

its reliability. We hold that the trial court abused its discretion in

holding to the contrary. Lane’s statement that he, with Salter and

Jenkins, committed the crime was critical to defendant’s ability to

present a complete defense and cannot be deemed harmless. See

United States v. Benveniste, 564 F.2d 335, 341-42 (9th Cir. 1977) (holding that the exclusion of such evidence “deprived appellant of

crucial substantiation of his asserted defense ***. *** As a result,

his case was ‘far less persuasive then it might have been.’ ”) (quoting

Chambers, 410 U.S. at 294, 35 L. Ed. 2d at 308, 93 S. Ct. at 1045)); Woods, 101 Nev. at 136, 696 P.2d at 470 (same; exclusion of such evidence “clearly prejudicial” because, without it,

defendant unable to properly present her version of the events). It is true that defendant presented evidence implicating Lane, Salter,

and Jenkins in this crime. From this evidence, the jury could have

inferred the facts supporting defendant’s case. However, this

inference was no substitute for Lane’s confession, which would

have provided crucial substantiation of defendant’s asserted

defense.

	We are mindful of the narrow holding of Chambers, and we re-acknowledge the efficacy of the general rule barring the

admission of an extrajudicial declaration that the declarant

committed a crime and not the defendant on trial. However, based

on the totality of the circumstances presented in this case, we must

hold that the exclusion of Lane’s hearsay statement denied

defendant a fair trial. For this reason, we reverse defendant’s

conviction and remand the cause for a new trial.

	We found that the evidence was sufficient to prove defendant

guilty beyond a reasonable doubt. We therefore find that there is no

double jeopardy impediment to a new trial. We note that we have

made no finding as to defendant’s guilt that would be binding on

retrial. See People v. Fornear, 176 Ill. 2d 523, 535 (1997); People v. Porter, 168 Ill. 2d 201, 215 (1995). Due to our disposition of this cause, we need not address defendant’s remaining contentions.

See, e.g., People v. Blue, 189 Ill. 2d 99, 140 (2000); People v. Manning, 182 Ill. 2d 193, 198 (1998); People v. Redd, 135 Ill. 2d 252, 327 (1990).

CONCLUSION

	For the foregoing reasons, the judgment of the circuit court of

Kane County is reversed, and the cause is remanded to that court

for a new trial consistent with this opinion.

Reversed and remanded.

	JUSTICE THOMAS took no part in the consideration or

decision of this case.

	CHIEF JUSTICE HARRISON, specially concurring:

	I agree with the result reached by the majority. I write

separately because I would hold that Tenney is entitled to a new

trial for an additional reason not mentioned by my colleagues,

namely, that he was tried, convicted and sentenced under a death

penalty law that violates the eighth and fourteenth amendments to

the United States Constitution (U.S. Const., amends. VIII, XIV)

and article I, section 2, of the Illinois Constitution (Ill. Const. 1970,

art. I, §2). People v. Bull, 185 Ill. 2d 179, 225 (1998) (Harrison, J., concurring in part and dissenting in part).

	In response to the demonstrated failure of this state’s death

penalty law, our court has now adopted a comprehensive set of

new rules governing the conduct of cases in which the State is

seeking imposition of a death sentence. For the reasons set forth in

my dissenting opinion in People v. Hickey, No. 87286, slip op. at 35 (September 27, 2001) (Harrison, C.J., dissenting), the

procedures contained in those rules are indispensable for achieving

an accurate determination of innocence or guilt and are applicable

to all capital cases now coming before us on review. Whether the

new rules will be sufficient to place this state’s capital punishment

system within the tolerances permitted by the state and federal

constitutions is a question we cannot yet answer. It is clear,

however, that no proceeding conducted without the benefit of

those rules can be deemed reliable. Tenney’s was such a

proceeding. For that reason, in addition to the reasons given by the

majority, I agree that Tenney’s conviction and sentence must be set

aside and that he must be granted a new trial.

	JUSTICE KILBRIDE, also specially concurring:

	I completely agree with the majority'’s judgment and rationale

for a new trial in this cause.    Nevertheless, I agree with Chief

Justice Harrison that defendant’’s   convictions and sentence should

also be set aside because the trial proceedings were not conducted

in accordance with the new supreme court rules governing capital

cases.   As I stated in my dissents in People v. Hickey, No. 87286, slip op. at 39 (Sept.ember 27, 2001) (Kilbride, J., dissenting), and People v. Simpson, No. 85084 , slip op. at 35 (Sept.ember 27, 2001) (Kilbride, J., dissenting), the procedures in capital cases prior to this court’’s adoption of the new rules were inherently unreliable

and did not sufficiently protect a defendant’’s constitutional rights.   Consequently, the rules, promulgated to help remedy the flaws of the old system, must be applied retroactively to all capital cases

currently pending on direct appeal. See People v. Hudson,195 Ill. 2d 117, 126 (2001); see also Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716 (1987).   For this additional reason, defendant should receive a new trial in

compliance with the new rules.