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People v. Johnson

ILLINOIS APPELLATE COURT — FIRST DISTRICT


OCTOBER 6, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WILLIE JOHNSON, DEFENDANT-APPELLANT.

APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

Defendant was charged with the crimes of attempted robbery and aggravated battery. A jury found him not guilty of attempted robbery and guilty of aggravated battery for which he was sentenced to serve six to eight years in the penitentiary. On appeal he raises three issues. (1) Erroneous rulings and impatience of the trial judge which denied him a fair trial. (2) Denial of admission of certain documents containing statements of prosecution witnesses; and (3) Improper tactic in attacking the credibility of the defendant by the prosecution.

The complaining witness, John Vemas, was riding on a C.T.A. bus heading West on Madison Street, at about midnight. He was seated in the rear of the bus. The defendant was seated in back of Vemas and questioned him about a Leica camera which Vemas was carrying at his side. The defendant then got up and tried to take the camera. Vemas resisted and was struck by the defendant about the face and left eye which swelled and closed. The bus driver signaled for police who arrested defendant.

• 1, 2 We find that the defendant was given a fair trial. We find no error on the part of the trial judge. Defense counsel in his zeal to present a good defense for the accused needlessly extended the examination and cross-examination of some of the witnesses. The trial court properly called counsel's attention to this and urged counsel not to delay. In general, the latitude allowed in cross-examination of witnesses rests largely in the discretion of the trial court, and only in a case of clear abuse of such discretion will the reviewing court find fault. In our opinion the trial court's action did not influence the jury in its decision. We find no erroneous rulings or impatience of the trial court.

• 3 Defendant contends further that the denial by the prosecution of a certain document, the so-called "prep sheet", allegedly containing the prosecution witness' previous statements, constituted reversible error. Defense failed to make a showing that the "prep sheet" contained statements of the defendant. In People v. Durso, 40 Ill.2d 242; 239 N.E.2d 842, the Illinois Supreme Court held that a defendant is entitled to a previous statement of a witness to be used for impeachment purposes, but the said requirement applies only to specific statements which have been established to exist and which are in the witness' own words or substantially verbatim. In the instant case, there was no showing, except a bare allegation, that the "prep sheet" contained some statements and that allegation was not precise. Also, in People v. Golson, 37 Ill.2d 419, 226 N.E.2d 610, the court said: "We cannot elevate such unverified remarks to the level of evidence creating a preliminary showing of the existence of a transcribed oral statement." In Golson defense failed to establish their right to a discovery of the statement because neither the statement giver, nor the statement taker, indicated that a statement was made or that, if it was made, the written transcription of it allegedly in the State's possession, truly reflected that which was said. The trial court properly denied discovery of the "prep sheet" in question.

• 4, 5 The defendant's last point on appeal finds fault with the prosecutor's attack on the credibility of the defendant. The defense actually introduced evidence of the defendant's past conviction, probably in the hope that the jury might infer that since defendant was on probation at the time, he would not have engaged in an activity which could be considered a violation of his probation. It was proper for the State to ask questions about the nature of the previous crime of which he had been convicted. In addition, the defendant's answers were evasive as to certain questions, causing the prosecutor to inquire further. Also, the defendant should not be heard to complain about the State improperly commented on this evidence, for any fair comment upon matters already in evidence is proper. People v. Kemp, 29 Ill.2d 321, 194 N.E.2d 217.

The judgment of the Circuit Court of Cook County is hereby affirmed.

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.

19711006

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