THIRD DIVISION

OCTOBER 31, 2007

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THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) No. 01 CR 10553

)

SHAKINA FEAZELL, ) Honorable

) Joseph G. Kazmierski,

Defendant-Appellant. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the modified opinion of the court upon denial of

petition for rehearing:

Following a jury trial in the circuit court of Cook County, defendant Shakina Feazell (Feazell)

was convicted of first-degree murder, armed robbery, and armed vehicular hijacking and sentenced

to 35 years’ imprisonment with two concurrent 10-year terms. This appeal follows. Feazell now

argues that: (1) the State engaged in prosecutorial misconduct by making prejudicial references to

the victim’s children and calling her a liar, manipulator, junkie and con; (2) the trial court erred by

admitting the testimonial statements of codefendant Dion Banks, in violation of the sixth amendment

confrontation clause; (3) defense counsel was ineffective for failing to request a sidebar or motion the

court for a new trial after the State introduced alleged hearsay evidence; (4) she cannot be convicted

of both armed robbery and aggravated vehicular hijacking because both crimes arise from one single

act; and (5) defense counsel was ineffective for failing to request specific jury forms for the various

instructions of murder.
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BACKGROUND

The State offered the testimony of 11 witnesses to establish that the defendant knowingly

participated in the armed vehicular hijacking, armed robbery and murder of Rose Newburn. For the

purpose of simplicity, most of the testimony will be related in the context of the defendant’s account

of the events.

Shakina Feazell was 25 years old and Dion Banks was 40 years old when they met at a drug

rehabilitation clinic where both were undergoing treatment. The pair began dating while undergoing

treatment for their respective drug addictions. Shortly after leaving the drug rehabilitation program,

both Feazell and Banks relapsed and began using illegal drugs again. Feazell testified that a few

months after the relationship began, Banks began to physically abuse her. The abuse occurred

especially when Banks lacked sufficient funds to purchase cocaine. 

On March 23, 2001, Feazell and Banks spent the night at a friend’s house. Both got high on

drugs and slept overnight in a spare bedroom of the house. Feazell testified that when she awoke,

Banks was gone and she was locked inside the bedroom. Feazell said that Banks locked the door

from the outside and left her without a phone, food, water, or bathroom access. Banks opened the

door when he returned to the house. Feazell testified that Banks informed her that they were going

to Ford City Mall to get a present for Banks’ niece. However, Feazell testified that she believed the

two were going to shoplift items from the mall. The two traveled to the mall in a stolen Toyota

Corolla; however, Feazell testified that she did not know the vehicle was stolen and that Banks

previously claimed the car was owned by his uncle. 

Banks drove to Ford City Mall and parked in a space next to a green Dodge Intrepid. The
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Dodge Intrepid was occupied by Rose Newburn and her two children, five-year-old Tyrone Newburn

and four-year-old Quincy Newburn. Rose Newburn was in the driver’s seat while Tyrone and Quincy

were sitting in the backseat. Feazell testified that after Banks parked the car, he said that the car he

wanted was right there (indicating the green Intrepid occupied by the Newburn family). Banks

quickly exited the Toyota Corolla and told Feazell to move over from the passenger’s seat into the

driver’s seat of the Toyota. Feazell complied with the request. Banks then pulled out a gun,

approached the Intrepid, and shouted “get the fuck out [of] the car.” Feazell testified that she did not

know Banks possessed a gun. As Rose Newburn was reaching into the back of the vehicle, Banks

shot through the window. Tyrone Newburn, who was five years old at the time of the incident,

testified that Banks reached inside the vehicle, threw his mother to the ground and shot her. Rose

Newburn ultimately bled to death because a bullet punctured an artery in her thigh. 

Banks then entered the Intrepid and drove away, instructing Feazell to follow him in the

Toyota. Both Tyrone and Quincy Newburn were still in the backseat of the vehicle when Banks

drove away from the scene. Before exiting the mall, Banks let Quincy and Tyrone Newburn out of

the car. The boys ran back to where their mother lay in the parking lot. Banks and Feazell drove out

of the mall in the stolen vehicles. Feazell testified that she was afraid of Banks and had no choice but

to follow him in the Toyota as he told her to do. Feazell followed Banks east on 79th Street in the

Toyota Corolla. Feazell stated that Banks was driving at a high rate of speed and swerved in and out

of traffic. Feazell testified that she then decided to cause a car accident in the hope of attracting the

police. 

Feazell rear-ended a white car. Joseph Harrison and his pregnant wife Retrina Smith were
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the occupants of the white car. Harrison testified that Banks had passed his vehicle before Feazell

hit his car. After Feazell bumped into the rear of his vehicle, Harrison walked to the rear of his

vehicle to inspect the damage. Harrison testified that he attempted to converse with Feazell about

the damage to his vehicle but Feazell refused to open her window or respond to his questions. Banks

apparently observed the accident and drove in reverse to the scene of the crash. Harrison testified

that as he tried to speak with Feazell, Banks jumped out of the Intrepid and asked, “[W]hat the fuck

was going on?” Harrison waved Banks off while trying to speak with Feazell, who was in the

Corolla. Banks instructed Feazell to drive away and returned to his vehicle. Feazell followed Banks’

directions and drove away from the scene of the crash. Harrison then returned to his vehicle and

followed Feazell. Banks, Feazell, and Harrison all began to travel east on 79th Street. Harrison

overtook Banks and Feazell at the intersection of 79th Street and Western Avenue. Harrison drove

alongside Feazell’s vehicle and began to shout at her. Banks’ vehicle was on the other side of

Feazell’s car. Feazell ignored Harrison and began to tell Banks what Harrison just shouted at her.

Harrison testified that Banks shouted “F him and pull off when the light turns green.” When the light

turned green, Feazell drove away and Harrison continued to follow her vehicle. Harrison testified

that Banks then drove alongside his car and shot at him twice. Harrison then stopped following

Feazell and drove away in the opposite direction.

According to Feazell, after Banks shot at Harrison, Banks caught up with her and asked what

she was trying to do. Feazell told him that she was very nervous and Banks told her to keep up with

him in traffic. Feazell testified that she continued to follow Banks as he turned into the parking lot

of a liquor store. Banks exited the Intrepid, took the keys from the Toyota driven by Feazell, and
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entered the liquor store, leaving Feazell in the Toyota. When Banks left the liquor store, he returned

the Toyota’s keys to Feazell and instructed her to continue following him. Feazell followed Banks

into a gas station. Banks then handed Feazell Rose Newburn’s purse and wallet, telling her to use

Newburn’s credit card to pay for gas. Feazell attempted to use the credit card but the transaction was

declined. Feazell claims that Banks asked her if she knew of a place where he could “get rid of the

[Intrepid].” Feazell told Banks that she knew of a chop shop on the west side of Chicago. Feazell

testified that she did not know the location of a chop shop, but lied to Banks so she could return to

that area. Feazell said she felt safer on the west side because her mother, sister, and most of her

family lived in that area. 

Feazell testified that Banks followed her on the expressway until he signaled her to exit.

Feazell then exited the expressway at Homan Avenue. She stopped the vehicle at a vacant lot at

Jackson and Lotus Avenues. Banks approached the car and instructed her to open the door. Feazell

said she refused to open the door and Banks became irate. According to Feazell, she told him she

was afraid to open the door because he might hit her. Feazell said she was nervous and scared and

began to apologize profusely to Banks. Banks replied: “[i]f I wanted to kill you or anything, I could

just shoot you through the window.” Feazell then opened the car door and Banks hit her legs several

times. The two then drove to her mother’s house. When they arrived, no one was at home. They

then went to the residence of Feazell’s sister, Yolanda. Yolanda testified at trial that Feazell was

smiling but appeared nervous when they first greeted each other. Yolanda stated on crossexamination that she speculated whether Feazell was “high.” Feazell testified that she could not tell

her sister that she was in danger because Banks was standing right next to them. Feazell testified that
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Banks began to brag to Yolanda about the Intrepid, but failed to mention that the car was stolen.

Banks also offered Yolanda a ride in the Intrepid, but she declined. Banks and Feazell then left

Yolanda’s home in separate vehicles as they had arrived.

Feazell testified that they drove to a White Castle restaurant parking lot where Banks

attempted to sell Rose Newburn’s cellular phone and camera. After Banks could not sell the phone,

he demanded that Feazell take him to a chop shop. Feazell told Banks that a chop shop was located

on Lake Street. As Banks followed Feazell through the streets, she crashed into two cars parked on

the street in front of the Garfield Park fieldhouse. Feazell again alleged that she intentionally caused

the car accidents to attract the police. The last car that Feazell hit flipped over and Feazell’s air bag

deployed. Feazell’s car stopped and she crawled out of the car and lay on the pavement. Feazell

testified that she was not really hurt but had a cut on her lip and a bump on her head. Steve Kelly

(Kelly) was outside the Garfield Park fieldhouse when he heard the car crash. He observed children

running toward the accident site and ran to the cars to offer assistance. Kelly approached Feazell and

called for emergency assistance. Banks soon arrived and asked Feazell if she was okay. Kelly

testified that he told Banks that an ambulance was on the way, but Banks ordered Feazell to get up

and said that he was going to take her to the hospital. Kelly stated that Feazell was saying “no, no,

no” as Banks picked her up. Banks then asked Kelly for directions to the nearest hospital, and both

Banks and Feazell left the scene in the Intrepid. 

Feazell testified that as Banks drove her away from the accident, she began to apologize for

the crash. Banks began to hit her on the side of her face and then he put the gun to her head. She

grabbed the gun but Banks threatened to shoot her if she did not let it go. He then stopped the car
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and began to beat her. Feazell testified that after Banks beat her, he told her they were going to the

Dan Ryan Woods at 87th and the Dan Ryan Expressway. At that point, the police began pursuing

the Intrepid and the car slammed into a pillar. Banks fled on foot and Feazell was arrested in the car.

Banks was later apprehended and arrested. 

Banks was tried separately before a jury, found guilty of first degree murder and given the

death penalty. He did not testify at Feazell’s trial.

During Feazell’s trial, the State called multiple witnesses to the stand, including Detective

Edward Winstead, who testified to the following during direct examination:

“Q. What is said to Shakina Feazell at that time [during

interrogation]?

A. I told Shakina Feazell that she wasn’t telling the whole truth, that

I talked to [Banks] and that they had gone to Ford City specifically to

get a new car, that the car that they were driving had been stolen, and

they had it too long, it was time to switch cars. She maintained that

she didn’t know the car she was in was stolen. I said he said she was

there when --

MS. JOHNSON: Objection

THE COURT: Sustained.

MR. RODGERS[:] Are these things that you are telling to Shakina

Feazell?

A. Yes.
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Q. Is she responding to these things?

A. She’s saying, no, I didn’t know it was stolen, and I said he told me

you drove–

MS. JOHNSON: Objection.

THE COURT: That’s what you said to her?

THE WITNESS: Yes, sir.

THE COURT: Okay, objection overruled.

MR. ROGERS[:] Go ahead

A. I said he said that you drove him in your Chevy when he stole the

car from a man in a gas station, this would be their original car, [a]

Toyota at 79th and Western, about three weeks before. I said you

told us you didn’t know he had a gun. He said you definitely knew he

had a gun. 

MS. JOHNSON: Objection.

THE COURT: Overruled.

THE WITNESS: You were living with him, and I quoted him, you

had seen the gun a million times. In fact, he kept it under his pillow

at night.

MS. JOHNSON: Objection.

THE COURT: Overruled

MR. RODGERS[:] What does the defendant say to you? 
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A. She said, ‘No, I didn’t know he had the gun.’ I said the other thing

is you knew you were going there to car jack to get a new car, to

trade cars. She said, ‘No, I went there to shoplift at Old Navy store.’

She said, ‘No, he said he was going to get a new car,’ and I said ,

‘How was he going to get the car?’ I said, ‘What would you do if you

were in a car and some guy said get out and give me the car?’ She

said, ‘I wouldn’t do it.’ I said, ‘How about if you had a gun,’ and she

said, ‘I would do it.’ She said, ‘When we got to the parking lot,’ she

said, ‘It was a green Intrepid, and he said I’m going to take that car,’

and she said he pulled over next to it, and she said, ‘I saw two little

boys in the back seat. I was thinking, boy, I hope they don’t get hurt.’

So I said, ‘How were they going to get hurt?’ She said, ‘well, I didn’t

know he had a gun.’ And I asked her, ‘What were you going to do

with the car,’ and she said, ‘We were going to take the car and drive

to the west side and try to sell it for money for drugs’

Q. After she tells you that, did you ask her for anything?

A. She was requested [sic] if she would give video or at least a courtreported statement of what she just told us, and she said she would.

Q. And did she eventually give one? 

A. No, she changed her mind and decided not to.

Q. One last thing, at one point, did she talk about being afraid of Dion
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Banks?

A. The very last thing that she said, I asked her why she stayed with

him. She said, ‘Well, I was afraid of him.’

Q. This is after he had done what he had done?

A. Yes, that was probably the last part of our conversation.

Q. Did she say when it was that she began [to be] afraid of Dion

Banks?

A. When she got to the west side.

Q. To the west side of Chicago?

A. Yes.

MR. RODGERS: Nothing further, Judge.”

 The jury ultimately convicted Feazell of first degree murder, armed robbery and aggravated

vehicular hijacking. Feazell received two concurrent 10-year terms consecutive to a 35 year term for

murder. Feazell now appeals her conviction. 

PROSECUTORIAL MISCONDUCT

Feazell first alleges prosecutorial misconduct based on certain statements made by the

prosecution during the trial. After examining the posttrial motion, we find that Feazell failed to

properly preserve this issue for appeal. A defendant’s failure to raise an issue in a written motion for

a new trial generally constitutes a waiver of that issue; however, the plain-error doctrine is applied

where the evidence is closely balanced or substantial rights are affected. People v. MacFarland, 228

Ill. App. 3d 107, 118, 592 N.E.2d 471, 479 (1992). “The plain-error doctrine *** allows a reviewing
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court to reach a forfeited issue affecting substantial rights in two circumstances.” People v. Herron,

215 Ill. 2d 167, 178, 830 N.E.2d 467, 474 (2005). “First, where the evidence in a case is so closely

balanced that the jury's guilty verdict may have resulted from the error and not the evidence, a

reviewing court may consider a forfeited error in order to preclude an argument that an innocent

person was wrongly convicted.” Herron, 215 Ill. 2d at 178, 830 N.E.2d at 474. “Second, where the

error is so serious that the defendant was denied a substantial right, and thus a fair trial, a reviewing

court may consider a forfeited error in order to preserve the integrity of the judicial process.”

Herron, 215 Ill. 2d at 179, 830 N.E.2d at 474. 

Under the plain-error test, we must see whether the evidence was so closely balanced that the

jury's guilty verdict resulted from the prosecutor’s comments and not the evidence presented at trial.

Feazell contends that the State engaged in prosecutorial misconduct by labeling her a liar, junkie,

manipulator, and con and by referencing Rose Newburn’s children during its closing arguments.

During the trial, the State presented evidence demonstrating that Feazell lied to the police about her

identity, was a convicted shoplifter, and was an admitted drug abuser. Testimony was presented from

several people who witnessed Feazell’s participation in the criminal activity throughout the streets

of Chicago. Feazell herself testified that she lied to the police about her identity, went to Ford City

Mall to shoplift, and had a drug abuse problem. Feazell also testified that she did not have any

knowledge of Banks’ plans to steal Newburn’s vehicle and that her fear of Banks prevented her from

leaving him and notifying the police as they traveled around the city. The State’s comments are

supported by the evidence produced at trial, including testimony given by Feazell. Even assuming

some impropriety, the evidence is not so closely balanced that the jury would have convicted Feazell
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as a result of the prosecutor’s comments and not the evidence presented at trial. Thus, the issue of

prosecutorial misconduct is waived under the plain-error doctrine. 

DION BANKS’ STATEMENTS INTRODUCED THROUGH WINSTEAD

Feazell next contends that she was denied the right to confront Banks when his testimony was

improperly allowed into evidence through Detective Winstead. At issue is whether Winstead’s

testimony contained improperly admitted hearsay evidence that violated Feazell’s sixth amendment

rights. During the trial, Winstead testified about the contents of an interrogation session he had with

Feazell while she was in police custody. Winstead testified that he confronted Feazell with Banks’

statements after Feazell lied about her identity, minimized her role in the crime, and denied having

prior knowledge of the vehicular hijacking or Banks’ possession of a gun. Over defense counsel’s

general objections, Winstead testified to statements given by Banks under interrogation. Feazell

argues that those statements were devastating to her defense. Winstead’s testimony included

statements that implicated Feazell in the original theft of the Toyota Corolla, which the pair used to

drive to Ford City Mall. We note that the theft of the Toyota was not at issue in the trial. There were

also statements from Dion Banks alleging that Feazell knowingly participated in the vehicular

hijacking of the Intrepid and had knowledge of the gun that he used in the crime. Feazell argues that

she is entitled to a new trial because Winstead’s testimony contained improperly admitted hearsay

statements that violated her sixth amendment rights. In summary, Feazell argues that Banks testified

against her through Winstead and she had no opportunity to confront Banks . 

Feazell points out that the trial court erred when it allowed Detective Winstead to testify to

the substantive contents of his discussion with her during interrogation because the statements
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violated the confrontation clause of the sixth amendment and the precedent set by Crawford v.

Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Feazell contends that

Winstead’s testimony was substantive and does not qualify as a nonhearsay statement or as a hearsay

exception. Feazell argues that Banks’ statement was the basis for the State’s theory of accountability

and absent the statement, all other evidence is insufficient to prove her knowledge of Banks’ actions.

Feazell claims that her own admission on the witness stand and criminal history only proved that she

shoplifted to support her drug habit. Without the hearsay evidence, Feazell argues the State’s

assertions regarding her knowledge of the crime and gun are uncorroborated by any other evidence.

Feazell argues that Banks’ statements were substantially prejudicial and thus denied her a fair trial.

The State argues that this issue is waived because it was not properly preserved for appeal

and, in the alternative, that the statements qualify as either nonhearsay statements or hearsay

exceptions. The State first argues that this issue should be reviewed under a plain-error doctrine

because the defense failed to preserve the issue in a posttrial motion. Under the plain error test, the

State asserts that the evidence is not closely balanced and that there was sufficient evidence at trial

demonstrating how Feazell was accountable for Bank’s actions. The State argues that the wide scope

of Feazell’s involvement was illustrated through various witnesses, including Detective Winstead’s

testimony. Winstead testified to the conversation he had with Feazell in which she admitted having

knowledge of Banks’ intent to steal the victim’s car before the commencement of the crime.

Winstead also testified that Feazell stated that she saw the two small boys in the victim’s car and

“hoped that no one got hurt,” but also said that they were going to take the car and whatever was in

it. Various State witnesses testified regarding Feazell’s involvement in the crime throughout its
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various stages. The State also argues that the evidence proves that Feazell was present during the

commission of the crime without opposing or disapproving it. The State also offered evidence that

Feazell accepted the contents of the victim’s purse and attempted to use her credit card at a gas

station. The State contends that the evidence demonstrates that this case is not closely balanced and

fails to meet the requirements of the plain-error test.

The State also argues that Detective Winstead’s testimony falls under the police investigation

exception to the hearsay rule. The State says that Winstead’s statements were used to demonstrate

the progression of the investigation. The State argues that Winstead’s testimony demonstrates

Feazell’s shift in position and properly falls under the police investigation exception.

Lastly, the State contends that Winstead’s statements also are nonhearsay statements used

for the purpose of showing the effect on the listener’s mind (Feazell) or to show why the listener

subsequently acted the way she did. The State points out that Winstead testified that prior to

Feazell’s being confronted with Banks’ statements, she lied about her identity and minimized her role

in the crimes. Feazell’s shift in position and truthfulness about her involvement only occurred after

she was confronted with Banks’ statements. The State argues that the statements were nonhearsay

statements and properly admitted at trial.

This issue is reviewed under the plain-error doctrine because it was not properly preserved

for appeal in a posttrial motion. As previously stated, the plain-error doctrine allows a reviewing

court to consider a forfeited issue in order to preserve the integrity of the judicial process where the

error is so serious that the defendant was denied a substantial right, and thus a fair trial. Herron, 215

Ill. 2d at 178, 830 N.E.2d at 474.
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“The Sixth Amendment’s Confrontation Clause [of the United States Constitution] provides

that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ..., to be confronted with the

witnesses against him.’” Crawford v. Washington, 541 U.S. 36, 42, 158 L. Ed. 2d 177, 187, 124 S.

Ct. 1354, 1359 (2004). The confrontation clause applies to witnesses who bear testimony against

the accused. Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364. Where testimonial

evidence is at issue, the sixth amendment demands unavailability and a prior opportunity for crossexamination. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Where testimonial

statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is

the one the Constitution actually provides: confrontation. Crawford, 541 U.S. at 68-69, 158 L. Ed.

2d at 203, 124 S. Ct. at 1374. “An accuser who makes a formal statement to government officers

bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.”

Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364. However, an exception to the

hearsay rule allows an officer to testify for the purpose of establishing how the investigation was

conducted and cannot be used to place into evidence the substance of any out-of-court statement or

conversations offered for the truth of their contents. People v. Jura, 352 Ill. App. 3d 1080, 1086, 817

N.E.2d 968, 974-75 (2004). “[T]he denial of the opportunity to cross-examine an adverse witness

does not fit within the limited category of constitutional errors that are deemed prejudicial in every

case.” Delaware v. Van Arsdall, 475 U.S. 673, 682, 89 L. Ed. 2d 674, 685, 106 S. Ct. 1431, 1437

(1986). An otherwise valid conviction should not be set aside if the reviewing court may confidently

say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. Van

Arsdall, 475 U.S. at 681, 89 L. Ed. 2d at 684, 106 S. Ct. at 1436. 
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“[A] police officer may reconstruct the steps taken in a crime’s investigation and may describe

the events leading up to the defendant’s arrest where such testimony is necessary *** to fully explain

the State’s case to the jury.” People v. Trotter, 254 Ill. App. 3d 514, 527, 626 N.E.2d 1104, 1112

(1993). “[T]here is a distinction between an officer testifying to the fact that he spoke to a witness

without disclosing the contents of that conversation and an officer testifying to the contents of the

conversation.” Trotter, 254 Ill. App. 3d at 527, 626 N.E.2d at 1112-13. “Under the investigation

procedure exception, the officer’s testimony must be limited to show how the investigation was

conducted, not to place into evidence the substance of any out-of-court statement or conversations

for the purpose of establishing the truth of their contents.” Trotter, 254 Ill. App. 3d at 527, 626

N.E.2d at 1113. “If such testimony is presented, the trial court must instruct the jury that the

testimony was introduced for the limited purpose of explaining what caused the police to act and that

they were not to accept the statement as true.” Trotter, 254 Ill. App. 3d at 528, 626 N.E.2d at 1113

(1993).

An out-of-court statement may also be introduced to prove the statement’s effect on the

listener’s mind or offered to show why the listener subsequently acted as he or she did. People v.

Thomas, 296 Ill. App. 3d 489, 499, 694 N.E.2d 1068, 1075 (1998). This type of statement is not

hearsay and is admissible in a trial. People v. Thomas, 296 Ill. App. 3d at 499, 694 N.E.2d at 1075.

We find that in this case, the trial court violated Feazell’s right to confrontation under the

sixth amendment and the precedent set in Crawford v. Washington by admitting Banks’ comments

into evidence through the testimony of Detective Winstead. The Supreme Court held in Crawford

v. Washington that “[a]n accuser who makes a formal statement to government officers bears
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testimony in a sense that a person who makes a casual remark to an acquaintance does not.”

Crawford v. Washington, 541 U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364. Banks’

statements were garnered during his interrogation by Winstead and relayed to Feazell during her

interrogation session with Winstead. Banks’ statements are clearly testimonial in nature. The United

States Supreme Court has clearly said that this type of statement cannot be introduced against the

defendant when the defense has not had the opportunity to confront the out-of-court declarant.

Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The out of court declarant must

be confronted by the defense to yield some indicia of reliability. Crawford, 541 U.S. at 68, 158 L.

Ed. 2d at 203, 124 S. Ct. at 1374. Banks’ statements are the statements of one codefendant under

the pressure of interrogation against another codefendant. Without anything more, Banks’ statements

bear no indicia of reliability. 

Banks’ statements also do not qualify under the police investigation exception because

Detective Winstead testified to the substantive contents of the statements made during the

interrogation. Although the court held in People v. Trotter, 254 Ill. App. 3d 514, 527, 626 N.E.2d

1104, 1112 (1993), that “a police officer may reconstruct the steps taken in a crime’s investigation,”

the court distinctly held that the officer’s testimony must be limited to show how the investigation

was conducted and not place into evidence the substance of any out-of-court statement or

conversations for the purpose of establishing the truth of their contents. Had Winstead merely stated

that he confronted Feazell with Banks’ statement, then he would have been within the boundaries of

the exception. However, he went much further. He, in effect, placed Banks’ version of the events

and Feazell’s alleged knowledge of those events squarely before the jury. There were also no limiting
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instructions from the court. The jury was simply given Banks’ version of the events through the

testimony of Winstead. The substantive statements were inadmissible hearsay and should never have

been allowed. 

We also reject the State’s contention that Bank’s statements were used to prove the effect of

the statements on Feazell’s mind or offered to show why Feazell subsequently acted as she did. The

State has failed to establish how Feazell’s behavior, actions or cooperation changed after hearing

Banks’ statements. All the State has demonstrated is that Feazell answered questions presented to

her during the interrogation process.

Feazell argues that since Dion was not subject to cross-examination, the admission of his

statement violated the confrontation clause. We agree. Further, we find that the error was so serious

as to deny her the fundamental right to a fair trial. Indeed, Banks’ testimony was a powerful force

for the State and was an integral part of their case. Thus, we find that the trial court has committed

plain error under the doctrine set forth in Herron. The trial court’s admission of Banks’ testimonial

statements against Feazell through Detective Winstead fell squarely within the ruling outlined in

Herron. The statements served as direct impeachment testimony to Feazell’s version of the events

and severely contradicted what she told the jury. Although the State contends that this was merely

harmless error, its argument is not convincing and fails to adequately address the constitutional

arguments raised by Feazell in her assertion that she had a right to confront Banks. Without Banks’

testimony, there was no other evidence that contradicted Feazell’s version of the events. This is

particularly damaging because Feazell was convicted of knowing murder and, as the State all but

conceded during oral arguments, no other direct evidence was offered by the State establishing that
1-05-1065

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Feazell knew Banks possessed a gun. 

Banks’ statements were unreliable as substantive evidence because Feazell did not have the

opportunity to confront him. This is the exact type of testimonial statement that Crawford aims to

prevent from being introduced against a defendant. Banks’ statement falls squarely within the four

corners of Crawford and the admission of the statement was error. This error is such that to preserve

the integrity of the judicial process, we must reverse Feazell’s conviction and remand for a new trial.

In light of our ruling on this issue, we need not reach the other issues raised by the defendant. 

Reversed and remanded.

GREIMAN and THEIS, JJ., concur.