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People v. Payne

JULY 7, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ROBERT A. MEIER, Judge, presiding.


The defendant, Jerome Payne, was tried for the robbery of Oscar Fallin, and a mistrial was declared on May 4, 1971, because the jury was unable to agree. At a subsequent trial the defendant was convicted on April 12, 1972, and sentenced to two to four years in the penitentiary.

Oscar Fallin testified at the first trial; but he was not present at the second trial, and a transcript of his previous testimony was read to the jury. The defendant's argument is that the previous testimony was inadmissible because the State failed to show that Fallin was dead; or alternatively, the State failed to show good faith diligence or was guilty of negligence in its efforts to produce Fallin.

On April 10, 1972, two days before the second trial began, the court conducted a hearing to determine whether it would permit the introduction of the previous testimony. The State called two witnesses, Chicago police officer John Brennan and Assistant State's Attorney Donald Novelle. Brennan was a vice control officer assigned to a district and had been a police officer for almost four years. He participated in the arrest of the defendant at 2 a.m. on July 22, 1970, and at that time he interviewed Oscar Fallin. Brennan later testified at the trial which resulted in a hung jury. He had not seen Fallin from the date that the first jury was discharged. He testified that he had made approximately 20 to 25 attempts to locate Fallin, the last time three days before the trial began when he went to Fallin's former residence and checked several associates of Fallin's and several gas stations where Fallin had previously been employed. He did not name the associates, nor the gas stations, nor did he specify the times that Fallin had worked at those gas stations. He first looked for Fallin when he received his own second trial subpoena in May or June, 1971. At that time he went to Fallin's residence at 3727 King Drive where he "understood" Fallin was living with his common-law wife. He could not remember the woman's name but could recall that there was a telephone number at the 3727 King Drive address and that it was in the woman's name. Illinois Bell had no listing for an Oscar Fallin either in May or June, 1971, or on April 10, 1972. Fallin's common-law wife was no longer living at the King Drive address and neither was Fallin. Although he had been to the King Drive address three days before the trial, he did not know the names of the people that were then living there. He last talked to someone at that address about two months before, a boy of 12 or 13 who claimed not to know Oscar Fallin or where he could be found. He made a post office check which disclosed that Fallin left no forwarding address with the postal authorities. No date of that check was given by Brennan.

He visited Fallin's station at 40th and Drexel soon after the first trial and found that it was closed and boarded up. He went to the gas station at 43rd and Vincennes where Fallin had worked on several occasions. The owner, Mr. Harper, was unaware of Fallin's whereabouts. Without disclosing his source of information, Brennan testified that he "learned" that Fallin had taken some of his tools to Johnny's Standard Station on 47th Street between Drexel and Cottage sometime around April, 1971. He went to the station on several unspecified dates and spoke there with a person named Johnny. He could not remember Johnny's last name. He remembered last being there on February 1 or 2, 1972, when Johnny told him that Fallin's tools were no longer there. Johnny did not know Fallin's whereabouts either.

Brennan went to a gas station located approximately two blocks from the 3727 King Drive address and spoke to the owner, a police officer named Jack Hightower. Fallin had worked there off and on. Brennan saw Hightower three days before the trial and was informed that Hightower did not know where Fallin could be reached.

On cross-examination Brennan testified he made no official or personal reports and made no notes concerning his efforts to locate Fallin. No one had told him at the time of the first trial to locate Fallin. He undertook the quest on his own shortly after he received the first of his own subpoenas for the second trial, sometime in June or in the summer of 1971. It was his job and department practice for him to find witnesses without instructions. His purpose in looking for Fallin was to notify him to be in court.

Before the first trial the State's Attorney's office was having difficulty locating Fallin and gave Brennan the Fallin subpoena which he served at the address, 3727 South King Drive. In June, 1971, he went to the third floor of 3727 South King Drive, which is a Chicago Housing Authority project. He did not know the apartment number, nor the persons with whom he spoke at that time. He did not remember any names. He did, however, remember that he identified himself as a police officer when he went through the apartment. The people there did not know Fallin, nor how to reach him. He did not check with any of the neighbors. He visited the Chicago Housing Authority and requested, but was refused, permission to see Fallin's housing application because Fallin's girlfriend was the lessee. He later visited the Chicago Housing Authority office and talked to an office guard, who in turn had someone in the office checking the records. Brennan did not see the records and could not recall having asked to examine the records or Fallin's girlfriend's rental application.

He once checked, sometime in 1971, with Michael Reese Hospital to see if Fallin's girlfriend was working there. He went to Michael Reese because Hightower told him that the woman was a nurse and that he thought she was employed at that hospital. The personnel office of Michael Reese advised him that the lady was not, and never had been, employed there as a nurse.

Brennan was unaware of how one determines whether a particular individual owns a car in Illinois. He did check police records and learned that Fallin had several arrests, the nature of which was not disclosed except for the last one which was an arrest for unlawful use of weapons. Brennan had not heard and had not read Fallin's testimony at the first trial. No one, including the prosecutors, ever gave Brennan any background information to aid him in a search for Fallin; the only information he got was from people he talked with and he never talked to any of the neighbors. In June, 1971, he drove an unmarked police car around Fallin's "gas station neighborhood" and talked with various unnamed men "hanging around" at gas stations including Harper's station. None of the men knew Fallin's whereabouts. He did not know whether Harper's station was at 43rd and Vincennes or 43rd and Forrestville. He received subpoenas on six occasions; and each time he looked for Fallin in the same places that he had visited before.

He did not attempt to trace Fallin through the Social Security Administration since he did not know Fallin's Social Security number. He knew Fallin's mother was living but he never checked with her and never tried to find out her name.

Donald Novelle, an Assistant State's Attorney, testified that he made several phone calls concerning Fallin on Friday, April 7, 1972, at about 2 p.m. He called Central Records at 11th and State with Fallin's criminal identification number and was informed that the last information they possessed on Fallin was an October, 1970, arrest. He learned from the Cook County Coroner's Office that no death certificate had been issued on Fallin. His associate called the Cook County Jail and the House of Correction and learned that neither institution had Fallin as an inmate. Novelle did not have a subpoena issued for Fallin for the second trial.

The defendant testified that the Friendly Pool Hall, with which he was familiar, burned to the ground in the winter of 1970, and was never rebuilt. Brennan had testified that the Friendly Pool Hall, which he visited looking for Fallin, was located at 42nd and Cottage Grove; but the defendant testified that Brennan was wrong and that the pool hall was located at 46th and Cottage Grove. The State offered no rebuttal.

The defendant's first contention that the death of the declarant is an essential element of the admissibility of former recorded testimony must be rejected. Decisions of the United States Supreme Court tacitly accept the proposition that only unavailability of the witness, and not just death, need be shown. (Mancusi v. Stubbs, 408 U.S. 204, 33 L.Ed.2d 293, 92 S.Ct. 2308; Barber v. Page, 390 U.S. 719, 20 L.Ed.2d 255, 88 S.Ct. 1318.) The defendant argues that this court is not bound by these Federal decisions; that they are merely standards of minimal fairness; and that Illinois courts are free to impose more stringent requirements than the Federal courts. We accept the defendant's description of our power as an abstract proposition but note that an Illinois court has already passed on the question and has held that ...

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