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People v. Montgomery

MARCH 21, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DOWNING, Judge, presiding.


Defendant, Robert D. Montgomery, was charged with attempt murder and aggravated battery upon Justo and Angel Rivera. A jury found him guilty of both charges as to Justo Rivera, guilty of aggravated battery upon Angel Rivera, and not guilty of attempt murder of Angel Rivera. The court imposed one sentence for the crimes against Justo Rivera, and sentenced defendant to a term of 5 to 15 years for attempt murder. The trial court sentenced defendant to a term of 5 to 10 years for the aggracated battery upon Angel Rivera. The sentences were to run concurrently. Brian Pace was charged with the same crimes, was tried in absentia with defendant, and is not involved in this appeal. Defendant contends that the trial court erred in precluding him from introducing into evidence a statement attributed to the absent Pace, in failing to tender to the jury certain instructions and verdict forms requested by defendant, in entering judgments of guilt on verdicts predicated upon the same act or series of acts, and in sentencing him to a term of years for the aggravated battery upon Angel Rivera unsubstantiated by the jury verdict.

Defendant and Pace were both present in court when the trial judge commenced jury selection. On the morning of the second day of voir dire, the privately retained counsel representing both defendants informed the court that he did not know the whereabouts of Pace. In response to the court's inquiries, defendant stated that he had not seen Pace since early the previous evening and that he doubted that Pace would voluntarily return to the trial. After discussing with the prosecutor and defense counsel the possible legal consequences of Pace's abrupt departure, the trial judge concluded that the proceedings had reached a point whereby jeopardy had attached to Pace and that his absence could be deemed a voluntary waiver of his constitutional right to be present at trial, thus enabling the State to try him in absentia with defendant. After the court denied defense counsel's motion to withdraw as attorney for Pace, the voir dire continued. Pace did not reappear at trial.

On the next day, defense counsel moved on behalf of Pace for a severance. Without detailing the substance of the communications, defense counsel stated that, as a result of a meeting he had with defendant on the previous evening, he would offer in evidence a certain statement that would tend to exonerate defendant at the expense of inculpating Pace. Counsel attempted to justify the untimeliness of the motion by claiming that Pace's absence had triggered defendant's remarks to him. The trial court reserved ruling on the motion, and the State commenced putting in its evidence.

Eight eyewitnesses, including the victims, testified for the State. On August 10, 1969, defendant and Pace interrupted a baseball game engaged in by the Rivera family in Lincoln Park in the city of Chicago, seeking to join the game. The father, Justo Rivera, refused, saying that they were ready to quit and go home. Defendant walked about 20 feet away, but Pace insisted that he be given the bat and the ball. An argument ensued, and Pace struck Justo Rivera, threatening to kill him. Defendant ran over, grabbed Justo from behind, locked the father's arms over his head, and held him while Pace continued to punch Justo. Eleven-year-old Angel Rivera came to his father's defense and struck both assailants with a baseball bat. While defendant maintained his hold on Justo Rivera, Pace chased Angel and, upon catching him, first kicked and then struck the boy with the bat several times on the head, causing blood to flow down the youth's face. Pace then returned and, as defendant continued to hold Justo, hit the latter several times with the bat until he fell unconscious to the ground.

James O'Kennard testified for the State to a similar set of facts. On cross-examination, the witness recalled his observations of Pace and defendant during the attack. O'Kennard stated that Pace appeared to be under the influence of heroin. O'Kennard testified that defendant's reflexes appeared better than Pace's, and characterized defendant's eyes as normal and his facial expression as not unusual.

Gerald Stevens testified for the State and supported the Riveras' account of what had occurred. In his opinion neither Pace nor defendant had been under the influence of alcohol or drugs. On cross-examination, the witness admitted telling a defense investigator that the two assailants were "obviously higher than kites."

Dennis McQuen, a friend of defendant and Pace, testified for the defense that the three of them had spent the afternoon listening to a rock festival in the park. Although other members of the group had popped pills and smoked marijuana that afternoon, he did not see either Pace or defendant indulge in anything except wine. The witness stated that both men were very drunk, but conceded that he himself had been intoxicated at the time he observed defendant's condition.

Defendant testified that he had consumed approximately 2 quarts of wine over a 4-to-5-hour period on the afternoon preceding the occurrence. Although he recalled seeing white pills in the possession of some of his companions, he did not recall taking any. He further testified that he had no knowledge of anything that took place subsequent to the time Pace and he left the group in search of more wine. On cross-examination, defendant conceded that he had been lucid enough to remember the amount of wine he had drunk and the manner in which he had been arrested.

After the defendant had replied affirmatively to his counsel's question, "Do you know today whether you consumed any pills at that particular place?", the State objected and a hearing was held outside the jury's presence. To the State's contention that the answer was incompetent as hearsay, defense counsel responded by making an offer of proof that, if the witness were permitted to testify, he would state that, on the evening of Pace's disappearance prior to trial, Pace told defendant that he was responsible for getting defendant into the present predicament because he had placed pills in defendant's drink prior to the attacks on the Riveras. Defense counsel stated that it was this information that had been the basis for his earlier motion for a severance. The trial judge held that the statement did not qualify as an exception to hearsay, and struck defendant's answer. The court also denied the motion for severance.

Defendant's first contention is that the trial court erred in denying defendant the right to introduce into evidence a statement attributed to the absent Pace which allegedly supported one of his defense theories. An ancillary position taken by defendant is that the court erred in denying the motion for a severance.

• 1 Defendant is in no position to question the propriety of the court's action in denying the motion for severance. The motion was expressly made on behalf of Pace because defense counsel feared the statement's admission into evidence would impair the rights of Pace, not defendant. Hence the issue is not properly appealable by defendant. In any event, we are unable to discern how the defendant could have been prejudiced by the court's action in denying the motion for severance. Had the court granted the motion made on behalf of Pace, the defendant would have had no way of properly introducing the statement into evidence. The statement was clearly hearsay because it was intended to prove the truth of the matter asserted. Defendant asserts that in the event of a severance the statement would have qualified as an exception to the hearsay rule since it constituted "an admission by an indicted co-defendant not joined at trial." Such an assertion is not encompassed within any of the established hearsay exceptions, is not supported by any legal authority, and is rejected by this court.

• 2, 3 Defendant argues, however, that the statement qualified as a party-admission and, therefore, is an exception to the hearsay rule, and should have been admitted into evidence. We believe that there are significant differences between the party-admission exception to the hearsay rule and the statement proffered in the present case. In the first place the party-admission exception only applies when the statement is sought to be introduced by a party-opponent (McCormick, Evidence, ch. 26, p. 628 (2d ed. 1972); Clearly, Handbook of Illinois Evidence, § 17.11, pp. 280-281 (2d ed. 1963)), since the admissibility is based upon the adversary theory of litigation. (Morgan, Basic Problems of Evidence 265 (1962).) Here, defendant Montgomery, not the State, sought to introduce the statement of his co-defendant Pace. The adversary nature of the proceedings makes a second distinguishing factor evident. The underlying reason for introducing a statement attributed to a party-opponent is, naturally, to use the statement substantively against him. Here, however, the defendant was disinterested in using the statement against the absent Pace. He sought to introduce the statement solely to exculpate himself. A third important element goes to the very roots of the party-admission exception to hearsay. This exception is not affected by the hearsay rule, which excludes extra-judicial assertions if there was no opportunity to cross-examine, because it is the party-opponent's own statement and he need not cross-examine himself. It is said that the hearsay rule is thus satisfied since the party "now as opponent has the full opportunity to put himself on the stand and explain his former assertion." (4 Wigmore, Evidence, § 1048, pp. 2-5 (3d ed. 1940).) Yet, in the instant case, not only did Pace voluntarily absent himself from trial, but it was co-defendant's own attorney who sought to have the statement admitted. We conclude that the statement did not qualify as a party-admission exception to the hearsay rule, and that the trial court properly excluded it.

Defendant's next contention is that the trial court erred in refusing defendant's verdict forms for simple battery. Moreover, he argues that the State's failure to address itself to this ...

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