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STEPHANIE BONDS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE TOOMIN\ndelivered the opinion of the court:\nIn the present appeal we encounter the contentions of the defendant that the rule barring hearsay testimony was improperly invoked so as to preclude her defense at trial. Following a jury trial, Stephanie Bonds was convicted of first degree murder of her 10-week-old son and sentenced to a term of 45 years\u2019 imprisonment. On appeal, she contends that the trial court\u2019s erroneous evidentiary rulings precluded her from offering prior inconsistent statements of her own witness as impeachment and as declarations against penal interest. She also requests that the mittimus be corrected to reflect only one conviction for first degree murder. No challenge is asserted to the sufficiency of the evidence. For the following reasons, we affirm and order the mittimus corrected.\nBACKGROUND\nOn June 1, 2005, Nyshon Johnson, defendant\u2019s 10-week-old son, suffered injuries ultimately causing his death. The following day, defendant confessed to inflicting the injuries in a videotaped statement. This statement was played for the jury at trial. Defendant claimed the initial injuries occurred when she tripped on a toy while carrying Nyshon through their apartment. The toy was left on the floor by her then-six-year-old son Chino. Nyshon then began to cry. As she carried Nyshon and cautioned him to be quiet, he hit his head on a wall between the two rooms.\nNyshon was inconsolable and continued to cry despite defendant\u2019s pleas for him to be quiet. Defendant sat down on the couch with Nyshon on her lap and began to shake him \u201chard\u201d using her hands and one leg and began hitting him in the head with her hand. The crying continued and defendant took Nyshon with both hands and threw him forcefully to the floor, which was covered with an unpadded and worn carpet. The back of Nyshon\u2019s head impacted the floor and he cried more vocally.\nDefendant retrieved Nyshon from the floor and returned to the couch where she shook him again and begged him to stop crying. It continued and she, once more, threw him to the floor. The side of his head again struck the floor. The tone of the cries changed, Nyshon continued to move his limbs, and the crying continued. Defendant then grabbed one of his arms and one of his legs and \u201cflung\u201d Nyshon onto the couch, where he struck the wooden portion of the couch with his head. On examining Nyshon, defendant observed that his eyes \u201cwere rolling around.\u201d Nyshon then closed his eyes and stopped crying. She then walked outside.\nDefendant\u2019s sister Stacy discovered Nyshon and brought him outside and gave him to defendant, who shook him but received no response. Nyshon was not breathing. A neighbor who heard the commotion came over and assisted defendant in performing cardiopulmonary resuscitation (CPU) on Nyshon. Defendant never told anyone on the scene what she had done.\nThe fire department and then paramedics arrived to treat and transport Nyshon to the hospital. Defendant rode along to West Suburban Hospital, where Nyshon was initially treated. He was later transported to Loyola University Medical Center by ambulance. Defendant never informed any of the paramedics or medical personnel what she did to Nyshon. While she was at Loyola, defendant called her sister and father to tell them to clean up the house before the Department of Children and Family Services (DCFS) came. When defendant later spoke with detectives, she lied to them about what she had done to Nyshon.\nAssistant Medical Examiner Wendy Lavezzi conducted the autopsy of Nyshon. She was apprised of some of the facts of the case prior to conducting the postmortem, but did not recall if she was aware of defendant\u2019s confession or if she learned of its contents shortly thereafter. She recalled being told Nyshon had been thrown.\nThe external examination revealed indications of Nyshon\u2019s hospitalization as well as several areas of bruising on the outside of his forehead, outside of his eye, and above his eyebrow. These bruises appeared to have been recently formed. There was bruising on his legs and one of his feet, though it was not clear whether they were due to traumatic injury, treatment, or organ failure while he was on the respirator. No cuts or lacerations were observed.\nDr. Lavezzi also performed an internal examination, particularly of Nyshon\u2019s cranial cavity and brain. Diffuse hemorrhage was found \u201call over the top of the head\u201d in the form of a subgaleal hemorrhage, which typically occurs at the focal point directly beneath the point of external injury. Signs of impacts were present on either side of his head. The amount of bleeding seen could have been worsened by the treatment and resulting bleeding disorder.\nThe left side of Nyshon\u2019s skull sustained a comminuted or branching fracture of the parietal portion of the cranium. The primary branch was 4 inches long with two downward branches measuring 2x/z inches. Similar fractures were observed on the right side. This indicated at least one impact on either side of the skull, but it was more likely that there were multiple impacts on each side. Fractures of this sort are not typical in children Nyshon\u2019s age due to the pliability of infant skulls. The nature of the fractures indicated that they were caused by \u201csignificant, directed force.\u201d There was also diffuse subdural hemorrhaging. The brain was extensively swollen, from the injuries and was likely exacerbated by the treatment at the hospital, including the time on the respirator. This swelling was evident in the external profile photograph depicting Nyshon\u2019s misshapen head. There was also hemorrhage around the optic nerves due to the impacts.\nDr. Lavezzi opined that the injuries were caused by blunt force trauma. The injuries were consistent with Nyshon\u2019s head hitting a wall. Of the approximately 15 autopsies she had conducted on infants who suffered blunt force trauma to the head, Nyshon\u2019s injuries were the worst she had ever seen. The injuries were not consistent with Nyshon having been dropped or accidentally struck. Instead, they were indicative of multiple instances of directed blunt force trauma to the head, specifically being struck against a large flat object several times. Likewise, Nyshon\u2019s presentation was consistent with more than one blow to the head, rather than a single blow or stomp to the head. Injuries to one side of the head can cause reciprocal injuries on the other side of the brain or tissue, but not to the skull itself.\nThe cause of Nyshon\u2019s death was \u201ccraniocerebral injuries due to blunt trauma,\u201d regardless of any other information or police reports. Likewise, the manner of death was homicide. Dr. Lavezzi opined that the injuries would not have been inflicted by a child because of the degree of force required to inflict these injuries. However, \u201canyone the size of an adult could inflict these injuries.\u201d\nThe State presented additional evidence not germane to the issues raised on appeal. Thereafter, the State rested its case-in-chief.\nDefendant took the stand and testified that she did not tell anyone what she had done until she gave her statement. She did so after voluntarily accompanying detectives to the station. She initially denied knowing how Nyshon was injured, but later acknowledged that she had lied.\nDefendant testified that she did not hurt Nyshon and that she was never alone with him during the time period he was injured. Instead, she maintained that she made the videotaped statement only after she was threatened with the loss of her children and her sister to DCFS custody. She was willing to say anything to keep that from happening. The detective told her what happened to Nyshon, what she should say in her statement, and that it would look good to the jury to give a statement.\nDefendant\u2019s son, Chino, who was eight years old at the time of trial and six years old at the time of the occurrence, was called by the defense. On initially being sworn by the court clerk, Chino indicated that he did not understand what was asked of him. The trial judge asked him, \u201cAll right, do you solemnly swear that the testimony you\u2019re going to give here today will be the truth, the whole truth, and nothing but the truth so help you God[?]\u201d Chino responded nonverbally and was told he had to do so aloud and then said, \u201cYes.\u201d When asked if he understood what the judge said to him, he again responded non-verbally. He ultimately stated that he did understand.\nChino remembered his brother going to the hospital, but lacked any other way to remember the day of the events. He knew he went to school that day, was picked up by defendant, taken home, did his homework, and then went outside. While he was inside the house with Nyshon, he did not recall picking him up or dropping him. Likewise, Chino did not recall telling his aunt, Salina, he was sorry for hurting Nyshon and how Nyshon slipped out of his hands. While he remembered telling his maternal grandmother that he picked up Nyshon because he was crying, he did not recall telling her he dropped Nyshon. Chino also did not recall meeting with a woman from DCFS named Karen Wilson or telling anyone from DCFS that he \u201cdropped Nyshon on Friday and Nyshon is now in heaven.\u201d\nChino admitted to having lied and told varying stories about what happened to his brother and denied being told to lie by any grownups. When asked to tell the \u201creally, really truth,\u201d Chino said he spent the entire day outside riding his bike. On further examination, Chino said he went home to start his homework right after school and that he had not been on his hike all day long. Again, no adult told him what to say.\nAfter Chino testified, defense counsel advised the court of his intent to call three additional witnesses to introduce Chino\u2019s prior inconsistent statements thereby impeaching his trial testimony. The trial judge observed that Chino appeared \u201cvery youthful\u201d and that \u201cthe demeanor of the statements of Chino Johnson first even taking the oath [sic] the Court is not satisfied that he understood or fully understands the difference between a truth [sic] and a lie or the moral obligation to testify truthfully.\u201d Neither side ever challenged Chino\u2019s competency to testify and the court did not perceive it was its function to do so. The trial judge indicated that his observations supported his belief that Chino \u201cdid not have any ability to recognize his obligation as the oath requires to testify truthfully in this case.\u201d\nWhen faced with the defense request to call witnesses to impeach its own witness, the trial judge observed that it would have to be limited to his credibility. In turn, the judge expressed uncertainty as to why Chino was called and what was to be gained by impeaching his credibility. Furthermore, this was clearly a situation where \u201cIllinois Pattern Jury Instruction 3.11\u201d would come into play and would limit the consideration of any prior inconsistent statement to the issue of credibility and could not be considered substantively. To do so would be legally improper. As such, he asked the defense what was accomplished through Chino\u2019s testimony and what the defense perceived would be accomplished by permitting impeachment.\nDefense counsel responded that Chino was called in hopes that he would \u201ctell what we believed to be the truth.\u201d The truth, according to defense counsel, was \u201cThat he actually did drop the child.\u201d Defense counsel agreed with the trial judge\u2019s assessment of Chino\u2019s credibility, but the key point for the defense was Chino\u2019s credibility stemming from his denial that he actually dropped Nyshon.\nAccording to the trial judge, it was clear that the purpose of calling Chino was to obtain an admission that he dropped or otherwise harmed Nyshon. However, Chino denied doing so and the defense was now planning to call three witnesses that would say Chino told them various things acknowledging that he somehow injured Nyshon. The judge then surmised that this purported impeachment evidence was actually going to be offered substantively, for the truth of the alleged statements. Defense counsel claimed the testimony was supportive of the theory that they did not know what happened to Nyshon where Chino and several other people were potentially alone with him. Yet, rather incongruously they were not planning to argue that Chino \u201cdid it.\u201d\nIn sum, the judge observed that it was still unclear what the defense was trying to accomplish by the impeachment other than that he was being truthful now or was lying now based on the prior statements. Otherwise, the trial judge did not see that Chino\u2019s testimony contributed to the proceedings. Perceiving that the defense was attempting to treat these statements substantively, the judge prophylac-tically forbade the parties from improperly arguing Chino\u2019s prior inconsistent statements as substantive evidence.\nThe State indicated they would be making a motion in limine as to the contemplated testimony on the basis of relevance. The trial judge said he saw no legitimate purpose for calling these witnesses. Defense counsel responded that the State\u2019s motion was an unfair tactic that would put him in a \u201cvery difficult position\u201d with the jury since he set up the impeachment of Chino.\nThe trial judge indicated that the defense could argue that defendant was not present when the injuries were inflicted, if they thought Chino was truthful on that point. However, this fact did not open the door to impeachment of Chino to \u201csubtly\u201d say that Chino is the one who did it. Otherwise, the proposed impeachment did not appear to be about Chino\u2019s credibility, but rather was to place his inculpa-tory statements before the jury.\nThe State\u2019s motion in limine was granted with the court reasoning the testimony would \u201cunduly and unfairly cloud the legitimate issues before this jury\u201d and the out-of-court statements could not possibly be used as substantive evidence. However, the parties were permitted to argue whether to believe Chino\u2019s testimony that defendant was not present when Nyshon was injured.\nThe trial judge also raised and discussed, at length, whether Chino\u2019s statements would qualify as an exception to hearsay as a declaration or statement against penal interest. He interpreted relevant case law and applied it to the facts in the case at bar, concluding that Chino\u2019s statements to others lacked \u201cany indicia of trustworthiness.\u201d Hence, none of the proffered statements made by Chino to others were properly admissible under this exception to the hearsay rule.\nThe defense then rested and the parties delivered their closing arguments. The jury returned a verdict of guilty of first degree murder. This appeal followed.\nANALYSIS\nEvidentiary rulings are left to the sound discretion of the trial court and ought not be reversed barring a clear showing the trial court abused its discretion. People v. Enis, 139 Ill. 2d 264, 281, 564 N.E.2d 1155, 1162 (1990). This is equally true for rulings on motions in limine. People v. Harvey, 211 Ill. 2d 368, 392, 813 N.E.2d 181, 196 (2004). Trial courts must determine whether proffered evidence \u201cfairly tends to prove or disprove the offense charged and whether that evidence is relevant in that it tends to make the question of guilt more or less probable.\u201d People v. Wheeler, 226 Ill. 2d 92, 132, 871 N.E.2d 728, 750 (2007). Trial courts can reject offered evidence as irrelevant for lacking probative value due to its remote nature, uncertainty, or potential for unfair prejudice. Harvey, 211 Ill. 2d at 392, 813 N.E.2d at 196.\nEvidentiary rulings will only be found to constitute abuses of discretion when they are \u201carbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.\u201d People v. Caffey, 205 Ill. 2d 52, 89, 792 N.E.2d 1163, 1188 (2001). Evidence is deemed admissible where its probative value outweighs any prejudicial effect. People v. Monroe, 66 Ill. 2d 317, 323, 362 N.E.2d 295, 297 (1977). On review, we are mindful that evidentiary rulings are not made in isolation; instead, they involve the consideration of the facts and circumstances of the case before the court. Caffey, 205 Ill. 2d at 89-90, 792 N.E.2d at 1188.\nPerfecting the Purported Impeachment of Chino\u2019s Testimony\nHere, as in Wheeler, defendant refers to her right to present a defense as the cornerstone of her appeal. See also People v. Molsby, 66 Ill. App. 3d 647, 657, 383 N.E.2d 1336, 1344 (1978). Although we are mindful of the fundamental underpinnings of this claim, we note nonetheless that this right is not limitless; \u201cit is also true that defining the precise limits controlling the admission of such evidence is difficult and if the evidence is too remote in time or too speculative to shed light on the fact to be found, it should be excluded.\u201d Wheeler, 226 Ill. 2d at 132, 871 N.E.2d at 750. Manifestly, we must remain focused on the relevance of the proffered evidence. See Wheeler, 226 Ill. 2d at 132, 871 N.E.2d at 750.\nThus, we observe, as did our supreme court in People v. McLaurin:\n\u201cThe right to offer the testimony of witnesses and to compel their attendance, if necessary, is, in plain terms, the right to present a defense. [Citation.] *** However, more than the mere absence of testimony is necessary to establish a violation of the right to compulsory process that the sixth amendment guarantees. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 73 L. Ed. 2d 1193, 1202, 102 S. Ct. 3440, 3446 (1982). *** The defendant must make at least some plausible showing of how the testimony of the witness would have been both material and favorable to his defense. Valenzuela-Bernal, 458 U.S. at 867, 73 L. Ed. 2d at 1202, 102 S. Ct. at 3446; People v. Fryer, 247 Ill. App. 3d 1051, 1064 (1993). Evidence is material when it tends to raise a reasonable doubt of the defendant\u2019s guilt. People v. Sims, 167 Ill. 2d 483, 507 (1995). The pertinent inquiry with respect to materiality is not whether the evidence might have helped the defense but whether it is reasonably likely that the evidence would have affected the outcome of the case. Sims, 167 Ill. 2d at 507; see Valenzuela-Bernal, 458 U.S. at 868-69, 73 L. Ed. 2d at 1203-04, 102 S. Ct. at 3447.\u201d People v. McLaurin, 184 Ill. 2d 58, 88-89, 703 N.E.2d 11, 25-26 (1998).\nYet, concomitantly the rights of confrontation and cross-examination are \u201cnot absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.\u201d Chambers v. Mississippi, 410 U.S. 284, 295, 35 L. Ed. 2d 297, 309, 93 S. Ct. 1038, 1046 (1973).\nWe likewise discern that Supreme Court Rule 238(a) provides that a witness can be impeached by any party (188 Ill. 2d R. 238(a)) within certain limits:\n\u201c[T]o do so, a party must show that the witnesses\u2019 testimony has damaged rather than failed to support the position of the impeaching party. People v. Weaver, 92 Ill. 2d 545, 563 (1982). It is only when the witness\u2019 testimony is more damaging than his complete failure to testify would have been that impeachment is useful. Weaver, 92 Ill. 2d at 563-64. The effect of evidence admitted for impeachment is that it tends to (1) discredit the witness (People v. Cruz, 162 Ill. 2d 314, 359 (1994)), and (2) cancel the witness\u2019 damaging testimony (Weaver, 92 Ill. 2d at 563).\u201d People v. Sims, 285 Ill. App. 3d 598, 610, 673 N.E.2d 1119, 1127 (1996).\nDamaging testimony is that which is actually helpful to the opposing party\u2019s case. People v. Cruz, 162 Ill. 2d 314, 360, 643 N.E.2d 646, 658 (1994).\nIn Weaver, our supreme court concisely explained the necessity and rationale for allowing impeachment by prior inconsistent statements only under very narrow circumstances:\n\u201cA court\u2019s witness, or any witness for that matter, cannot be impeached by prior inconsistent statements unless his testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party\u2019s evidence, except to bring inadmissible hearsay to the attention of the jury. Impeachment is supposed to cancel out the witness\u2019 testimony. It is only when the witness\u2019 testimony is more damaging than his complete failure to testify would have been that impeachment is useful. See People v. Johnson (1929), 333 Ill. 469; People v. Chitwood (1976), 36 Ill. App. 3d 1017; McCormick, Evidence sec. 36 (2d ed. 1972).\u201d People v. Weaver, 92 Ill. 2d 545, 563-64, 442 N.E.2d 255, 262-63 (1982).\nWe are further mindful that there is a potential risk in using prior inconsistent statements as impeachment wherein a jury could consider them as evidence of the truth of the impeaching words. People v. Gacho, 122 Ill. 2d 221, 252, 522 N.E.2d 1146, 1161 (1988). The interplay of impeachment and substantive evidence was succinctly described in People v. Barton, where the court explained:\n\u201cIt is black-letter law that a witness\u2019s prior inconsistent statement is admissible only to attack his credibility and cannot be admitted as proof of the substance of the statement. [Citation.] The purpose of impeachment is to destroy credibility, not to prove the facts stated in the impeaching statement, and what a witness says out of court and out of the presence of defendant is pure hearsay and incompetent. [Citation.]\u201d People v. Barton, 286 Ill. App. 3d 954, 961, 677 N.E.2d 476, 481 (1997).\nSee also Cruz, 162 Ill. 2d at 359, 643 N.E.2d at 657.\nImpeachment by prior inconsistent statements similarly presents a problem for juries when called upon to compartmentalize the testimony as regarding credibility, rather than substantively. Cruz, 162 Ill. 2d at 364, 643 N.E.2d at 660; see People v. Paradise, 30 Ill. 2d 381, 384, 196 N.E.2d 689, 691 (1964) (discussing the challenge to jurors to differentiate between impeachment of credibility and substantive evidence when faced with statements witnesses \u201cwill not affirm *** in a public proceeding\u201d).\nInitially, we must agree with the State\u2019s position that Chino\u2019s testimony did not damage defendant\u2019s case, though it plainly did not support her theory of the case. See Sims, 285 Ill. App. 3d at 610, 673 N.E.2d at 1127. The record establishes that there were several people, including Chino, who were alone with Nyshon at some point near the time he was injured. Additionally, Chino testified, in part, that defendant was not in the apartment at the time when Nyshon was hurt. This assertion certainly does not damage defendant\u2019s case.\nNothing about Chino\u2019s testimony, most particularly his denials of having harmed Nyshon, does violence to defendant\u2019s theory of an unknown perpetrator or that of accidental injuries. Likewise, the line of questions resulting in Chino\u2019s denials may just have easily created this precise inference apparently sought by defendant. Yet, significance necessarily attaches to the fact that Chino\u2019s testimony did not actually inculpate defendant.\nGiven the guidepost provided in Sims, we fail to perceive Chino\u2019s testimony as more damaging to defendant than if he had never been called. Sims, 285 Ill. App. 3d at 610, 673 N.E.2d at 1127. In contrast, the prior statement of the witness sought to be elicited in Chambers actually incriminated the witness and tended to exculpate the defendant. That is plainly not the case here. We cannot conclude that the proposed testimony would have been useful to the proceedings. Sims, 285 Ill. App. 3d at 610, 673 N.E.2d at 1127. Manifestly, the import of such testimony would have exceeded the proper purpose of impeachment and tended to lead the jury to believe the truth of the impeaching statement rather than calling into question Chino\u2019s credibility. See Barton, 286 Ill. App. 3d at 961, 677 N.E.2d at 481.\nThe Curative Effect of Illinois Pattern Jury Instructions Criminal 4th No. 3.11\nDefendant contends the use of Illinois Pattern Jury Instructions, Criminal, No. 3.11 (4th ed. 2000) (hererinafter IPI Criminal 4th), limiting the scope of consideration of prior inconsistent statements, was a safeguard against the jury improperly considering the proposed testimony substantively. Likewise, her counsel\u2019s assurances that the closing argument would not urge the jury to consider such testimony substantively provided another safeguard to make way for this desired line of impeachment. In nearly the same breath, she claims the defense \u201cshould have been given the opportunity to cast doubt on Chino\u2019s credibility where he testified that he did not hurt his brother.\u201d We disagree on each point and observe that courts have deemed reversals appropriate even where such limiting jury instructions were given. See Cruz, 162 Ill. 2d at 366, 643 N.E.2d at 661.\nThe record establishes that doubt was cast on Chino\u2019s credibility by his own words and pattern of lying and admitting to it on the stand. It is difficult to imagine what more could be accomplished by permitting the other three witnesses to testify. The inference the defense sought was already in play, i.e., that Chino might have been the one to hurt his brother. Submitting additional testimony that he said he hurt his brother, despite his denials at trial, in our view exceeds the bounds of proper impeachment by a wide measure and poses a serious risk that any such testimony would be considered substantively by the jury. See Gacho, 122 Ill. 2d at 252, 522 N.E.2d at 1161. Considered against this record, we cannot conclude that instructing the jury pursuant to IPI Criminal 4th No. 3.11 was sufficient to insulate the proposed testimony against improper consideration by the jury.\nThe Trial Court\u2019s Consideration of Chino\u2019s Competency\nDefendant boldly claims the trial court erred when it considered Chino\u2019s competence as a witness in determining whether to allow the proposed impeachment as evidence. Specifically, defendant claims the triad court found Chino incompetent to testify and then erred in \u201cdoing nothing\u201d in the wake of that determination. Even more incongruously, defendant asserts the trial judge \u201cwas prohibited from doing nothing about Chino\u2019s competency, and by his inaction, denied Stephanie the right to present a defense.\u201d (Emphasis added.) Defendant fails to cite to any authority to support such novel and peculiar arguments. Moreover, a careful review of this portion of the record conclusively undermines this claim and its supporting logic.\nThe trial judge\u2019s comments about Chino\u2019s testimony were not in our view a finding of incompetency. He said, \u201cfrankly, I don\u2019t believe Chino is a competent witness to testify.\u201d His comments are more properly classified as either thinking aloud or playing the devil\u2019s advocate in the context of considering the proposed witnesses. Notably, the parties chose to forego a competency hearing earlier and there was nothing to accomplish in conducting such a hearing at this stage. While defendant now faults the trial judge for \u201cdoing nothing,\u201d we note that neither party suggested striking Chino\u2019s testimony. Moreover, the defense benefitted by his testimony \u2014 though probably not to the extent hoped \u2014 when he testified that defendant was not alone with Nyshon at the time of the injuries. The tenability of defendant\u2019s position decreases with each consideration. Had Chino\u2019s testimony been stricken, by motion of the parties or by the trial judge sua sponte, defendant would have lost any benefit from it. As noted, there was certainly some benefit inuring to defendant from that testimony. Therefore, it defies logic and common sense that defendant would now complain of the court\u2019s handling of Chino\u2019s testimony.\nWe further discern this claim of error to be pure sophistry. Defendant chose to call Chino and got some benefit from his testimony. Even if his testimony was stricken, in light of retroactive finding of incompetency, it would be of no help to defendant\u2019s case. Parties are not permitted to complain of errors they induced or participated in at trial. Hill v. Cowan, 202 Ill. 2d 151, 159, 781 N.E.2d 1065, 1069 (2002). Here, any error regarding the testimony of Chino was initiated, at least in part, by defendant\u2019s choice to proceed without first conducting a competency hearing or seeking an in limine ruling. Even still, defendant\u2019s argument is subject to further frailties when it is considered against the full context. It is readily apparent that the trial court\u2019s decision to preclude the proffered testimony was founded upon the defense\u2019s inability to demonstrate a proper purpose for that testimony other than to place improper substantive evidence before the jury. The trial court\u2019s comments about Chino\u2019s competency were collateral to the issue to be decided, clearly did not figure into the ultimate conclusion, and were not erroneous. See Caffey, 205 Ill. 2d at 89-90, 792 N.E.2d at 1188 (evidentiary determinations require courts to consider all the facts and circumstances involved).\nSubstantive Use of Chino\u2019s Prior Statements\nHad Chino\u2019s purported statements been made under different circumstances, they perhaps could have qualified for admission pursuant to section 115 \u2014 10.1 of the Code of Criminal Procedure of 1963. 725 ILCS 5/115 \u2014 10.1 (West 2004). While this section is not specifically invoked, the trial judge\u2019s comments and analysis persuade that its applicability was considered.\nThe precise genesis of this statute is disputed in the literature. See R. Steigmann, Prior Inconsistent Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638 (1984) (claiming authorship of the draft legislation giving rise to section 115 \u2014 10.1 based upon and inspired by M. Graham, Employing Inconsistent Statements for Impeachment and as Substantive Evidence: A Critical Review and Proposed Amendments of Federal Rules of Evidence, 801(d)(1)(a), 613 and 607, 75 Mich L. Rev. 1565 (1977)); J. McDonnell, Admissibility of Prior Inconsistent Statements: Further Protection Against the \u201cTurncoat\u201d Witness, 73 Ill. B.J. 212, 213 (1984) (attributing legislation to \u201cGeneral Assembly\u2019s own appraisal of virtually the same arguments presented\u201d to the supreme court in People v. Collins, 49 Ill. 2d 179, 274 N.E.2d 77 (1971)); and M. Krauskopf, Prior Inconsistent Statements as Substantive Evidence: Illinois Takes the Sting Out of the Turncoat Witness, 19 J. Marshall L. Rev. 69, 78 (1985) (section 115\u2014 10.1 was enacted: (1) because judicial adherence to Collins, 49 Ill. 2d 179, 274 N.E.2d 77, demonstrated a \u201clack of judicial initiative\u201d; and (2) \u201cin an attempt to aid in the truth-seeking [function]\u201d). Nevertheless, the legislation represented a determination by the Illinois legislature that \u201cunder certain circumstances, prior inconsistent statements in criminal cases are admissible as substantive evidence.\u201d 72 Ill. B.J. at 638.\nJustice Steigmann, who claims authorship of the draft of the eventual enactment, described policy rationales behind the legislative support for it thusly:\n\u201c(1) substantive admissibility is desirable because the proximity of prior statements to the event makes them more trustworthy than in-court testimony; (2) substantive admissibility will protect parties from turncoat witnesses; (3) the hearsay problems are eliminated because the witness is in court and subject to cross-examination; and (4) jurors had difficulty distinguishing between statements admitted substantively and those admitted solely to impeach a witness\u2019 credibility when the prior law permitted a jury to hear that witness\u2019 prior inconsistent statement. Last, this legislative action is consistent with the conclusion urged by the sponsors of section 115 \u2014 10.1 that, to the extent criminal trials are to be a search for the truth, the rule barring substantive admissibility of prior inconsistent statements constituted an unnecessary impediment to that goal.\u201d 72 Ill. B.J. at 638.\nHowever, this section does not serve to make the whole universe of prior inconsistent statements admissible; the determination of admissibility still depends upon the relevance and materiality of the proffered evidence. 72 Ill. B.J. at 639. Justice Steigmann points out that \u201cthe rules severely restricting the use of prior inconsistent statements for impeachment purposes only ought to be more strictly adhered to \u2014 not less. To do otherwise would reward sloppy investigative practices and would remove the incentive to comply with the new statute.\u201d 72 Ill. B.J. at 643.\nSection 115 \u2014 10.1 provides:\n\u201cIn all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if\n(a) the statement is inconsistent with his testimony at the hearing or trial, and\n(b) the witness is subject to cross-examination concerning the statement, and\n(c) the statement\u2014\n(1) was made under oath at a trial, hearing, or other proceeding, or\n(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and\n(A) the statement is proved to have been written or signed by the witness, or\n(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or\n(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.\nNothing in this Section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement was not recorded or otherwise fails to meet the criteria set forth herein.\u201d 725 ILCS 5/115 \u2014 10.1 (West 2004).\nWhile this section grants broad discretion to the trial court to determine admissibility, it cannot be used to support admission of evidence that is either irrelevant or unfairly prejudicial. People v. Radovick, 275 Ill. App. 3d 809, 820, 656 N.E.2d 235, 243 (1995). As this concerns the admission of evidence, a matter within the trial court\u2019s discretion, we will not disturb such rulings unless it is clear there was an abuse. People v. Thomas, 171 Ill. 2d 207, 218, 664 N.E.2d 76, 83 (1996).\nHere, the record clearly reflects that Chino\u2019s alleged statements to these three witnesses were inconsistent with his testimony at trial and that he was subject to cross-examination. However, they were not made under oath. While the alleged statements do arguably narrate, describe or explain something purportedly within Chino\u2019s personal knowledge, they were all made orally and not otherwise memorialized or acknowledged. Despite the flexibility evinced in the rule for admitting prior inconsistent statements for impeachment purposes, we do not find that these satisfy the criteria of section 115 \u2014 10.1.\nMindful of the requirement that the presentation of prior inconsistent statements, whether used for impeachment or substantively, necessarily requires the laying of a proper foundation (People v. Hallbeck, 227 Ill. App. 3d 59, 62-63, 590 N.E.2d 971, 972-74 (1992)), the record reflects only questions about whether Chino made the statements and no inquiry as to the time, place, or circumstances in which they were made. See also People v. Edwards, 309 Ill. App. 3d 447, 457, 722 N.E.2d 258, 265 (1999) (Steigmann, J. specially concurring) (expanding on the foundational requirements for section 115\u2014 10.1 use of a prior inconsistent statement). Consequently, section 115 \u2014 10.1 does not support the admissibility of the proposed impeachment where there was no proper foundation laid for them and the threshold requirements of the statute were not met.\nAdmissibility of Chino\u2019s Prior Statements as Declarations Against Penal Interest\nLast, defendant asserts that Chino\u2019s extrajudicial statements should have been admitted as declarations against penal interest, an exception to the hearsay rule. We observe that the trial judge raised this alternative theory sua sponte when contemplating the admissibility of this evidence. Defendant maintains that the trial court\u2019s determination that Chino\u2019s out-of-court statements did not satisfy the requirements of this hearsay exception was error thereby preventing her from presenting a meaningful defense to the charges.\nNotably, we perceive that defendant\u2019s argument markedly varies from the position offered at trial, disclaiming that Chino injured Nyshon. Rather, defense counsel unequivocally stated:\n\u201cOur position, Judge, is that we don\u2019t know who did it. Chino was there. We on a personal level we think that this is an accident. That is not what we are trying to establish to the jury.\u201d\nAccordingly, we find somewhat disingenuous defendant\u2019s present argument that essentially maintains that Chino was the one who caused the injury. Nonetheless, we will consider the merits of this newly advanced claim.\nGenerally, hearsay evidence is testimony of an out-of-court statement offered for the truth of the matter asserted and thus resting for its value upon the credibility of the out-of-court asserter. People v. Carpenter, 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741 (1963); see also C. McCormick, Handbook of the Law of Evidence \u00a7225 (1954). Historically, an unsworn extrajudicial statement by the declarant that he, and not the defendant on trial, committed the crime was inadmissible as hearsay though the declaration was against the declarant\u2019s penal interest. People v. Lettrich, 413 Ill. 172, 178, 108 N.E.2d 488, 491-92 (1952); see also People v. Williams, 131 Ill. App. 3d 597, 606, 475 N.E.2d 1082, 1088 (1985).\nHowever, an exception to this rule evolved to the extent that declarations against penal interest will be admitted where justice requires. See People v. Tenney, 205 Ill. 2d 411, 433, 793 N.E.2d 571, 585 (2002); Lettrich, 413 Ill. at 178, 108 N.E.2d at 492. The justification for this exception is founded on the assumption that a person is unlikely to fabricate a statement against his or her own interest. Tenney, 205 Ill. 2d at 433, 793 N.E.2d at 585, citing Chambers v. Mississippi, 410 U.S. 284, 299, 35 L. Ed. 2d 297, 311, 93 S. Ct. 1038, 1047-48 (1973). In Tenney, our supreme court summarized the rule and its application:\n\u201cAccordingly, 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\u2019s penal interest. Such a declaration will be admitted, however, where justice requires.\u201d Tenney, 205 Ill. 2d at 433, 793 N.E.2d at 585.\nAs the Supreme Court held in Chambers, \u201cwhere constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.\u201d Chambers, 410 U.S. at 302, 35 L. Ed. 2d at 313, 93 S. Ct. at 1049. Accordingly, such declarations may be admitted where there is sufficient indicia of trustworthiness. Chambers, 410 U.S. at 302, 35 L. Ed. 2d at 313, 93 S. Ct. at 1049.\nOur analysis in the case sub judice is guided by the objective indicia of trustworthiness enumerated in Chambers for judging the reliability of such statements. Those factors are: (1) whether the statement was made spontaneously to a close acquaintance in close temporal proximity to the offense; (2) whether some other evidence corroborates the alleged statement; (3) whether the statement is, in fact, self-incriminating and against the declarant\u2019s interest; and (4) whether adequate opportunity was afforded to cross-examine the declarant. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49. Admissibility does not require the satisfaction of each of these elements; they are merely guideposts for the analysis. Tenney, 205 Ill. 2d at 435, 793 N.E.2d at 586; see People v. Bowel, 111 Ill. 2d 58, 68, 488 N.E.2d 995, 1000 (1986). Nor are credibility determinations implicated in the analysis. People v. Kokoraleis, 149 Ill. App. 3d 1000, 1019, 501 N.E.2d 207, 220 (1986).\nThe Chambers factors are not a limitation on trial courts and additional factors can be considered in evaluating a statement\u2019s trustworthiness. People v. Anderson, 291 Ill. App. 3d 843, 850, 684 N.E.2d 845, 849 (1997); see also People v. Swaggirt, 282 Ill. App. 3d 692, 700, 668 N.E.2d 634, 641 (1996) (just as the Chambers factors are not prerequisites, satisfaction \u201cof one or more of the factors does not make a statement trustworthy\u201d). The focus of the determination is instead on \u201cwhether [the statement] was made under circumstances which provide considerable assurance of its reliability by objective indicia of trustworthiness.\u201d Caffey, 205 Ill. 2d at 97, 792 N.E.2d at 1192; see also People v. Thomas, 171 Ill. 2d 207, 216, 664 N.E.2d 76, 81 (1996); People v. Pecoraro, 175 Ill. 2d 294, 307, 677 N.E.2d 875, 882 (1997).\nWe are, to be sure, cognizant that out-of-court statements are not typically uttered in \u201ccircumstances that impress the speaker with the solemnity of his statements.\u201d Chambers, 410 U.S. at 298, 35 L. Ed. 2d at 311, 93 S. Ct. at 1047. Conversely, statements made in custody to law enforcement are \u201cmore likely than not to be trustworthy.\u201d Kokoraleis, 149 Ill. App. 3d at 1021, 501 N.E.2d at 221; see People v. Jones, 302 Ill. App. 3d 892, 899, 707 N.E.2d 192, 197 (1998). The reliability or trustworthiness of an out-of-court statement is weighed against the totality of the circumstances and the conclusion thereon will not be disturbed unless it constituted an abuse of discretion. Anderson, 291 Ill. App. 3d at 849, 684 N.E.2d at 848; see also People v. Williams, 193 Ill. 2d 1, 20, 737 N.E.2d 230, 241-42 (2000).\nHere, defendant claims the statements purportedly made by Chino to his aunt, Salina Ford, and to his maternal grandmother, Demetrius Bonds, satisfy the four factors in Chambers\u2019 indicia of trustworthiness. Defendant likewise maintains that three of the factors are satisfied as to the alleged statement to DCFS caseworker Karen Wilson, as well as an additional factor supporting admission. We disagree.\nOur analysis commences by considering whether Chino\u2019s alleged statements were spontaneously made to a close acquaintance as provided in the first Chambers factor. Defendant\u2019s analysis glosses over the spontaneity of the statements and solely argues that this factor is satisfied because Chino\u2019s aunt and grandmother were close acquaintances by virtue of being family relations. Yet, the closeness of their relationship is not evident in the record. Likewise, no mention is made of the second aspect of that factor, namely, the spontaneity of the statement with respect to the subject matter of the injury. We perceive that the record reveals little support for a claim that the statements were made spontaneously. The only reference even hinting at it appears when Chino was asked: \u201cDo you remember a day or two after your mother was arrested in this case talking with your Aunty Salina?\u201d On the record before us, we do not conclude this factor was satisfied as to either witness.\nAdditionally, this indicia is clearly lacking as to the DCFS caseworker on either account as there is no indication she was a close acquaintance or that the statement was made spontaneously. The only information providing any link to its timing is Chino\u2019s purported statement that he \u201cdropped Nyshon on Friday and Nyshon is now in heaven.\u201d This does not appear particularly spontaneous given objective evidence demonstrating that the injuries were inflicted on June 1, 2005, and Nyshon died three days later.\nMoreover, we recognize the timing of the statement is not the sole aspect determinative of spontaneity in our view. Rather, spontaneity is also dependent on the context of the statement. There is no context in the record as to the statements made to Chino\u2019s aunt or his grandmother. Likewise, we have no context for the statement to the caseworker, other than the question noted. In each case, some meaningful foundational questions would have aided the analysis of this factor. Without knowing more about how the statements were elicited and when and where they were made, we are unable to determine that they were spontaneous.\nConsidering the second Chambers factor of corroborating evidence, defendant claims the statements corroborated one another. The circular nature of this logic is manifest. Defendant does not cite any authority for this particular brand of corroboration and offers only a citation cautioning judges not to be too stringent in judging corroboration. Nonetheless, the most defendant is able to muster on this point is that, \u201cChino made a total of three inculpatory statements that are all similar.\u201d Plainly, this ignores the absence of any context for the statements and the fact that only Chino\u2019s denials were in evidence. See Chambers, 410 U.S. at 300, 35 L. Ed. 2d at 312, 93 S. Ct. at 1048 (\u201ceach one was corroborated by some other evidence in the case\u201d (emphasis added)).\nDefendant also posits that the statements are somehow corroborated \u201cby the trial testimony which showed that Chino was angry because a neighbor accused him of either stealing a ball or setting her garage on fire.\u201d In making this claim, defendant makes a leap of logic not supported by reason or the record. Additionally, other evidence in the record undermines this position.\nDefendant\u2019s statement to the police is a powerful and compelling piece of evidence of the source of Nyshon\u2019s injuries which plausibly explains their extent and nature. Moreover, the assistant medical examiner\u2019s testimony called into question the veracity of defendant\u2019s implicit allegation that Chino was the source of the injuries to Nyshon. Although the record indeed supports the conclusion that injuries were sustained in part when he was dropped, Chino\u2019s alleged statements are simply not corroborated by the extent of the injuries. Significantly, the testimony taken from the law enforcement witnesses, an assistant State\u2019s Attorney and two of the investigating detectives contains only limited references to Chino. None of those references relate in any fashion to his having any culpability or claims that he was the cause of his brother\u2019s injuries.\nDefendant claims yet another factor supports admission of the DCFS caseworker\u2019s statement and consequently corroborates the proposed testimony of Chino\u2019s grandmother and his aunt. Thus the defendant posits that Chino\u2019s alleged statement to her is one of \u201cunbiased corroboration\u201d and that nothing was to be gained by Chino in claiming responsibility for injuring Nyshon when he spoke with the caseworker. Defendant boldly claims, \u201cIf he was making false confessions in order to attempt to exculpate his mother, then he would not have denied making the statements at trial.\u201d We disagree, finding this to be a dubious position in light of Chino\u2019s age and pattern of dishonesty. We fail to see how bias is relevant to the calculus. By this logic, Chino\u2019s aunt\u2019s and grandmother\u2019s claims were potentially motivated by bias. Nonetheless, we do not perceive that the relationship between Chino and the caseworker contributes reliability or trustworthiness. The record reveals little about the depth and extent of Chino\u2019s relationship with any of these three women. There is certainly nothing to persuade us that bias came into play.\nWe turn, then, to the third Chambers factor, whether the alleged statements were actually self-incriminatory to Chino and against his interest. Unquestionably, a statement claiming responsibility for inflicting an injury to an infant who later dies is extremely likely to be incriminating and equally against one\u2019s interest. However, concluding so in the context of the facts sub judice is a more difficult task.\nChino was six years old at the time Nyshon was injured and eight years old at the time of trial. The trial judge observed his youth on the stand and noted his apparent inability to appreciate the difference between truth and fiction. The record does not convince us that assuming, arguendo, Chino made the statements attributed to him, that he could comprehend their incriminating nature or their relation to his self-interest. These considerations engender serious doubt that Chino could fully appreciate the pitfalls of self-inculpation or his penal interest.\nTurning to the fourth factor, we find adequate opportunity to cross-examine the declarant did exist. Since Chino was called as a defense witness, the relevance of cross-examination is unclear in this context. Even still, he was subject to direct examination, cross-examination, as well as redirect examination. See 188 Ill. 2d R. 238(a); see also People v. Tate, 87 Ill. 2d 134, 144, 429 N.E.2d 470, 476 (1981) (declarant was subject to cross-examination but other indicia of reliability were lacking). Additionally, as discussed previously, no meaningful foundation was laid for presenting the impeachment of Chino\u2019s denial. The net value of the testimony, insofar as trustworthiness and reliability, was to deny the alleged statements and admit to having lied repeatedly on and off the stand. Considering this factor alone, we are given great pause as to the reliability of any statement made by Chino, regardless of the context. The record makes clear that the trial judge had similar misgivings.\nGiven the state of the record, we agree with the trial court\u2019s conclusion that Chino\u2019s statements were lacking \u201cconsiderable assurance\u201d of their reliability. See Caffey, 205 Ill. 2d at 97, 792 N.E.2d at 1192. Likewise, there are no additional factors apparent in the record tending to demonstrate these statements were otherwise trustworthy. See Anderson, 291 Ill. App. 3d at 850, 684 N.E.2d at 849; People v. Swaggirt, 282 Ill. App. 3d 692, 700, 668 N.E.2d 634, 641 (1996). Therefore, the alleged statements did not satisfy the prerequisites for admission as against Chino\u2019s penal interest. See Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49. Consequently, the trial court did not err in barring their admission.\nHarmless Error\nThere is no need to consider whether any error was harmless beyond a reasonable doubt as we find no error in the trial court\u2019s evidentiary rulings. See People v. Patterson, 154 Ill. 2d 414, 447, 610 N.E.2d 16, 30 (1992). The trial judge was consistently at the forefront of each issue arising at trial. We find his actions and decisions to be utterly without error throughout the proceedings.\nOne Act, One Crime\nLast, defendant asks us to correct the mittimus to reflect only one conviction for murder, according to the one-act, one-crime doctrine. See, e.g., People v. Wesley, 382 Ill. App. 3d 588, 594, 888 N.E.2d 681, 686 (2008). The State is in agreement. Therefore, pursuant to our powers granted by Supreme Court Rule 615(b)(1), we order the mittimus to be corrected to reflect a single conviction of murder. 134 Ill. 2d R. 615(b)(1).\nIn light of defendant\u2019s having prevailed on the issue of the mittimus, the assessment of costs payable to the State for defending this appeal is inappropriate. See People v. Merrero, 121 Ill. App. 3d 716, 723-24, 459 N.E.2d 1158, 1164 (1984). Therefore, we deny the State\u2019s request for costs as to the defense of the appeal as well as for oral argument.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. The mittimus shall be corrected by deleting defendant\u2019s conviction for first degree murder on count I.\nAffirmed and mittimus corrected.\nFITZGERALD SMITH, P.J., with TULLY, J., concur.", "type": "majority", "author": "JUSTICE TOOMIN" } ], "attorneys": [ "Patricia Unsinn and Ann B. McLennan, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Rimas F. Cernius, and Jennifer Chow, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHANIE BONDS, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201407\u20141629\nOpinion filed April 24, 2009.\nRehearing denied June 16, 2009.\nPatricia Unsinn and Ann B. McLennan, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Rimas F. Cernius, and Jennifer Chow, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0182-01", "first_page_order": 196, "last_page_order": 216 }