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People v. Hanks

FEBRUARY 21, 1974.




APPEAL from the Circuit Court of Champaign County; the Hon. ROGER H. LITTLE, Judge, presiding.


After a jury trial in the circuit court of Champaign County, Gary P. Hanks was convicted of burglary and sentenced to imprisonment in the penitentiary for one year, six months to three years. On this appeal, he seeks reversal of the conviction on the grounds of the trial court's evidentiary rulings and denial of his motion to suppress identification testimony.

The State's principal witness was Thomas Wayne Green, age 17, a janitor for the Pizza Hut, located at Neil and Kirby Streets, Champaign, Illinois. He arrived at work on March 20, 1972, around 5:00 A.M. Upon entering the building, he noticed a yellow Volkswagen parked near the main entrance. Shortly thereafter, he heard a commotion in the basement, then a car start, and he looked out through the glass door observing the person in the Volkswagen as the car started and drove off toward Kirby Street. Although it was fairly dark, he noticed that the subject had curly black hair of medium length, that he wore a yellow shirt and was a young white male of medium build, weighing about 150 to 160 pounds. He saw the car speed off with lights off and immediately called the police, who were sent to the area in pursuit of the subject vehicle, described by Green as a late model yellow Volkswagen.

Shortly thereafter, officer Danny Strand apprehended defendant in a yellow Volkswagen, ordered him to exit, and defendant attempted to escape by fleeing and refused to stop until the officer drew his gun. After turning defendant over to other officers at the scene of the arrest, he observed a dark brown curly hair wig in the front seat, a set of leather gloves, assorted boxes of tools, suitcases, crowbar, tool pouches and other paraphernalia, including a hydraulic jack laying in the back part of the car. The crowbar that had paint scrapings on the end was lying on the top of the boxes in plain view. It was later established through expert testimony that the particles on the crowbar matched the paint taken from the back door of the Pizza Hut that had been pried open to gain entry.

While the witness Green was in a room in the police station making a statement concerning the burglary, he saw a person walk through who looked quite a bit like the alleged burglar except that his hair was too long and that it was not curly. The defendant had been first instructed by the police to walk through the room where Green was sitting without the wig on and later wearing the wig that was found in the car. This time, when the defendant was wearing the wig, Green informed the officer taking his statement that the person who then walked by him was very similar to the man he saw leaving the scene of the crime.

Prior to trial, defendant filed a motion to suppress any testimony concerning lineups that defendant participated in and further suppress any in-court identification of defendant by State's witnesses. After hearing, the court denied both motions. Defendant further claims error of the trial court based upon evidentiary rulings of the trial court limiting defense counsel's cross-examination of witnesses Green and Jerry Lewis, the assistant manager of the Pizza Hut. During the cross-examination of Green, defense counsel attempted to elicit from the witness why he had subsequently been fired from his job at the Pizza Hut approximately a month after the incident in question. The State's objection to the relevancy and the scope of the cross-examination was sustained. Consequently defense counsel made an offer of proof outside of the presence of the jury concerning the issue. The defense counsel was attempting to show that witness Green had a motive for perjuring himself. Later on defense counsel made a similar offer of proof during the cross-examination of the witness Lewis. Apparently Lewis was the individual who had witnessed Green's alleged thefts. This offer of proof was also denied. Essentially, defense counsel was trying to establish through his offer of proof that there had been a shortage of money in the Pizza Hut prior to the burglary and that the management of the Pizza Hut had set up a trap and caught Green on one specific date and that he had admitted the thefts.

In the defendant's case in chief, an alibi defense was resorted to. Certain witnesses testified that the defendant had left Chicago in the yellow Volkswagen belonging to his fiancee at approximately 1:30 A.M. on March 20; that the car had significant damage in its rear portion; and that it had no racing stripes on the side and had a decal on the back window. William Ranier testified that the defendant arrived at his house sometime between 4:30 and 5:00 A.M., and that defendant stayed approximately 20 to 30 minutes at his home.

Defendant attaches considerable significance to the discrepancies that existed in Green's description of defendant's car. Green had previously testified that the Volkswagen he observed was a fairly new model and at the bottom had some sort of black markings, which he characterized as something like racing stripes although he stated it could have been the running board, and he noticed that the rear window had a defroster. When defendant was apprehended, he was driving a late model yellow Volkswagen with a black running board; however, it did not have any racing stripes.

The defendant contends that the offers of proof of the main witness' thefts from his employer would show a motive to falsify in that the witness himself may have committed the crime and had a definite interest in seeing the defendant convicted. He argues further that the testimony of the assistant manager Lewis should have been admitted since it tended to support the earlier offer presenting facts establishing the biasness of Green.

• 1, 2 Generally, a reviewing court will not interfere with a trial court's ruling concerning the latitude allowable on cross-examination of the witness unless that ruling was clearly abusive and resulted in a manifest prejudice to the defendant. (People v. Halteman (1956), 10 Ill.2d 74, 139 N.E.2d 286.) However, the widest latitude should be given the defendant in cross-examining for the purpose of establishing bias of a witness (People v. Naujokas (1962), 25 Ill.2d 32, 182 N.E.2d 700), and the inquiry may extend to matters outside the scope of direct examination. (People v. Steel (1972), 52 Ill.2d 442, 288 N.E.2d 355.) This general rule has been explained in criminal cases involving a witness called by the State to prove its case and who has been arrested or charged with the crime for which the defendant stands charged or for separate offenses of such nature that the witness' testimony might be influenced thereby on account of his interest, bias or motive to testify falsely. People v. Norwood (1973), 54 Ill.2d 253, 296 N.E.2d 852; see People v. Garcia (1967), 90 Ill. App.2d 396, 232 N.E.2d 810.

• 3 Although it is not permissible to show that a witness has been arrested, charged with an offense, or confined in prison, or to even inquire into such facts upon cross-examination when no conviction is shown for the mere purpose of impairing his credibility, a defendant can show bias or interest of a witness in order to impeach him. In People v. Mason (1963), 28 Ill.2d 396, 192 N.E.2d 835, the court stated:

"* * * [E]ven in jurisdictions where evidence of arrest or indictment is not ordinarily admissible to impeach credibility generally, the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely. Anno. 20 A.L.R.2d 1421, 1440." (Emphasis supplied.) 28 Ill.2d 396, 400-401.

In People v. George (1971), 49 Ill.2d 372, 274 N.E.2d 26, the supreme court again reaffirmed the rule of Mason and Halteman. The scope of the court's ruling in George was that it was proper for a defense counsel in cross-examination to bring forth the fact that the witness was charged with an offense in order to show a "possibly influencing interest" (49 Ill.2d 372, 380). In the George case, a defendant attempted to elicit on cross-examination from a witness that said witness had simply been under investigation for the burglaries that the defendant stood charged with. The trial court refused to permit defense counsel to pursue such a line of questioning. The supreme court held that the trial court did not clearly abuse its discretion in so ruling (49 Ill.2d 372, 381). The court in so holding resorted to the rule of Halteman wherein it is specifically stated:

"As a general rule the latitude to be allowed in cross-examination of witnesses rests largely in the discretion of the trial court. Such cross-examination should be kept within fair and reasonable limits, and it is only in a case of clear abuse of such discretion, resulting in manifest prejudice ...

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