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People v. Gischer





APPEAL from the Circuit Court of St. Clair County; the Hon. J.F. CUNNINGHAM, Judge, presiding.


This is an appeal from a conviction and sentence imposed in the Circuit Court of St. Clair County upon a jury verdict finding defendant guilty of burglary. On appeal it is urged that the trial court erred in four respects: in limiting the cross-examination of two State's witnesses and refusing to allow defendant to call two witnesses with regard to defendant's intent; in admitting into evidence an inculpatory statement read from a police report; in giving both an admission and a confession instruction; and, in ordering the sentence of probation to run consecutively to a sentence of probation for an earlier offense.

On May 17, 1974, defendant, Donald Gischer, was observed by neighbors as he arrived at his brother-in-law's home. He tried the front and then the back doors, and then returned to the front of the house. One neighbor took the license plate number of the defendant's car, while another called the police to inform them of a suspected burglary. The defendant was then observed leaving the house with several guns wrapped in a quilt. Seeing the neighbor, the defendant identified himself as the victim's brother-in-law and stated that he was picking up some guns. The defendant then put the guns into the back seat of his car and drove off.

Upon arriving at the house, the police officer noted that a front window of Richard Raby's home had been pried open. A description of the defendant and his car was transmitted to Officer Benne, who stopped the defendant about 15 minutes later. Observing a number of gun stocks in the quilt lying in the back seat, Officer Benne arrested the defendant and took him to the Cahokia Police Station. Upon his arrival defendant was advised of his Miranda rights and asked if he wished to speak to Sergeant Sanderson, also on the Cahokia Police Department, without an attorney present. He agreed to do so and subsequently wrote and signed an inculpatory statement.

After a jury verdict finding defendant guilty of burglary, he was sentenced to a four-year term of probation to run consecutively with a term he had received for an earlier offense, a fine of $400, with six months imprisonment in the county jail to be included as part of the probationary period.

As his first issue on appeal defendant alleges that the trial court's refusal to allow defense counsel to examine two witnesses and to pursue a line of questioning on the cross-examination of Sergeant Sanderson and Richard Raby as to why defendant had taken the guns denied him the opportunity to establish that he did not have the requisite intent to deprive Raby of the guns permanently. Defendant maintains that the cumulative effect of these rulings denied him his constitutional right to present a defense. In so arguing defendant relies upon the decisions in Washington v. Texas, 388 U.S. 14, 18 L.Ed.2d 1019, 87 S.Ct. 1920 (1967), and Chambers v. Mississippi, 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038 (1973) which held, respectively, that an accused may not, consistent with the Sixth and Fourteenth Amendments, be arbitrarily deprived of the right to present witnesses to establish a defense nor the right to confront and cross-examine witnesses against him.

At trial defendant by an offer of proof sought to introduce the testimony of his sisters Bernice Raby and Linda Weigand. The testimony adduced in these offers of proof showed that on the evening prior to the burglary, Mr. Raby had been discovered in a car with an unknown woman by the defendant and Ms. Weigand who informed Mrs. Raby of this. Upon his arrival home, Mr. Raby was met at the door of his home by his wife who confronted him with this story of his alleged whereabouts, and an argument ensued. Mrs. Raby testified that the defendant was not present during the altercation with her husband but that Linda Weigand was in a car parked in the driveway. Mrs. Raby did not think Ms. Weigand could hear the argument because it "wasn't that loud." Mrs. Raby further testified that she could not recall any threats made to her by her husband. Ms. Weigand in the offer of proof stated that the defendant was down the street but could have heard the argument because it was loud. No testimony in either of the offers of proof was adduced which indicated that Mr. Raby had threatened to shoot anyone. Nor was there any indication that the defendant himself ever considered anyone to be in danger. The trial court sustained the State's objection to the offer of proof on the ground of relevance. We find no error in the court's ruling and further find that the refusal of this testimony did not deprive defendant of his constitutional right to present a defense.

• 1 The defendant argues that the intent to permanently deprive is one of the material elements of the instant charge of burglary (Ill. Rev. Stat. 1975, ch. 38, par. 16-1).

"A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct." (Ill. Rev. Stat. 1973, ch. 38, par. 4-4.)

An inference of intent may be made by the act of taking another's property. (People v. Baddeley, 106 Ill. App.2d 154, 245 N.E.2d 593.) However, any evidence offered to rebut such an inference must be relevant and material to the issue of intent. There was nothing in the offers of proof to indicate that defendant did not intend to act as he did, that he had permission to take the guns, or that he intended to take them only temporarily. The defense theorized that the defendant may have taken the firearms in order to protect Mrs. Raby from harm by her husband. Even on the questionable assumption that the testimony offered would tend to support this theory, this evidence would not have established whether defendant intended to act as he did in removing the guns, but rather it would have established a possible motive explaining why defendant acted in this manner. Motive is not an element that the State must prove to establish its case. An accused's motive is not a defense to the criminal charge of burglary, and it has no bearing on guilt or innocence. Thus, the testimony which the defense offered was simply not relevant or material to any issue of the case. "In all criminal cases it is important that the evidence be fairly limited to the issue on trial, as collateral or extraneous matters can only mislead or prejudice a jury." People v. Pickett, 34 Ill. App.3d 590, 598-99, 340 N.E.2d 259, 266.

• 2 Finally, it is clear that the exclusion of this testimony did not infringe upon defendant's constitutional rights. The right to present and examine witnesses is not violated where the testimony sought to be produced is not relevant and material to a valid defense to the crime charged. An examination of both the Washington v. Texas and Chambers v. Mississippi decisions clearly demonstrates that the Supreme Court had no intention of abrogating established evidentiary rules requiring testimony to be relevant and material before it can be admitted into evidence.

• 3, 4 We now consider the limitation of the cross-examination of two State's witnesses which defendant claims was error. During the cross-examination of Sergeant Sanderson defense counsel asked him if during his investigation he attempted to learn the defendant's intent in going into the Raby home. After the trial court sustained the State's objection to the question, defense counsel asked no further questions of the witness, did not take exception to the court's ruling, did not tender an offer of proof, and did not attempt to recall the witness during the presentation of the defense. During the cross-examination of Raby, the burglary victim, defense counsel attempted to elicit from the witness whether an incident had occurred the day before the burglary which created hostility between him and the defendant. The State objected, and the court stated that the objection would be sustained unless the defense could show relevance. A discussion at the bench off the record was had after which the court sustained the objection. Again, no exception to the ruling was taken, no offer of proof tendered, and no later attempt to recall the witness was made. The State urges that defendant failed to preserve the issue of the restriction of the cross-examination of these witnesses by failing to make an offer of proof. We agree. In its present posture there is nothing in the record to contradict the trial court's finding of irrelevance. "The purpose of an offer of proof is merely to preserve on the record the nature of the offered evidence, to which an objection has been sustained so as to enable a court of review to determine if the ruling was correct." (People v. Persinger 49 Ill. App.3d 116, 363 N.E.2d 897.) In the absence of an offer of proof or other demonstration of relevance, no appealable issue remains. Harris v. Algonquin Ready Mix, Inc., 13 Ill. App.3d 559, 300 N.E.2d 824.

• 5 Even so, if we were to consider these rulings under the plain error doctrine, Supreme Court Rule 615(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a)), we find no prejudicial error to the defendant. Presumably, defense counsel sought to elicit testimony as to why the defendant took the guns just as was attempted in the offers of proof of Ms. Weigand and Mrs. Raby. As discussed, we find that this line of questioning went to defendant's motive not his intent and that the matter bore no relevance to the issue of guilt or innocence.

The defendant claims that the reading into evidence from a police report of an oral inculpatory statement made by the defendant was reversible error. ...

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