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People v. Dimond

OPINION FILED NOVEMBER 4, 1977.

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

v.

LARRY DIMOND, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McDonough County; the Hon. MAX B. STEWART, Judge, presiding.

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

Defendant Larry Dimond appeals from a conviction of burglary in the Circuit Court of McDonough County following a jury trial. Defendant was sentenced to a term of 1 to 3 years imprisonment.

In a brief prepared by the State Appellate Defender defendant contends that his right to effective cross-examination was denied by the trial court's limitation of defense counsel's inquiry into possible bias and motive of the State's accomplice witness. In the supplemental brief, submitted by defendant, defendant also contends he was denied his right to a speedy trial.

On January 8, 1974, defendant was arrested and charged by information with two counts of burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1). At an arraignment on April 3, 1974, defendant tendered a plea of not guilty to the charges and requested trial by jury. On March 1, 1974, the McDonough County grand jury had returned an indictment charging defendant with two counts of burglary. Count I specified a burglary by defendant on January 8, 1974, of a house owned by Ralph Cordell and named as co-defendants in such burglary Gary Fisher and Paul Ferrin. Count II charged defendant alone with the burglary of a house of Katherine Bainter on January 6, 1974.

November 18, 1974, the case was called for trial. Defendant moved to dismiss on the ground that he had been denied a speedy trial. The trial court denied the motion. The State moved that Paul Ferrin, one of the co-defendants named in Count I of the indictment, be granted immunity. The trial court granted the State's motion, apparently over objection of defendant. The State was then permitted to elect to proceed to trial first on Count I of the indictment, and on November 19, 1974, testimony was heard from the State's first witness. The trial on Count II, however, was never completed for the reason that on November 21, 1974, defendant, pursuant to negotiations involving other charges pending against him, tendered a guilty plea to one of the counts of the indictment. There was an understanding that dismissal would be made of another count. The trial court entered its conditional concurrence in defendant's guilty plea, but on January 28, 1975, the trial court withdrew its concurrence to the plea agreement due to reservations by the judge concerning the number of charges which were made part of the negotiations. On March 12, 1975, defendant formally withdrew his guilty plea, and the trial judge recused himself on his own motion. On April 30, 1975, defendant's case was assigned to another judge for trial to commence on May 19, 1975, but the trial was not held on that date.

On March 15, 1976, defendant's case was set for trial on April 5 or 6, 1976. On the date set for trial, defendant moved to dismiss the prosecution on the ground that he had been denied his right to a speedy trial. That motion was denied by the trial court. The cause proceeded to trial on Count I of the indictment.

Two witnesses testified for the State. The first witness, Ralph Cordell, testified that on January 8, 1974, he discovered that a farmhouse owned by him had been broken into, and he reported the break-in to the sheriff. The State's second witness was Paul Ferrin, who, originally, had been named as co-defendant in the Cordell burglary. After the jury had been withdrawn and the trial court had granted the prosecutor's motion for immunity as to witness Ferrin, Ferrin testified that after Ferrin, Fisher and defendant had left a bar at approximately 11 p.m. on January 7, 1974, they observed a farmhouse near Colchester, Illinois, which appeared unoccupied, and that all three men, after breaking a window in the front door, entered the house and removed a number of items, including a couple of guns. Ferrin also testified on direct examination that he had received immunity from prosecution on this charge in return for his testimony.

On cross-examination, Ferrin acknowledged that he had been charged with the same offense for which defendant was on trial, and also that he had first been offered immunity in the case in November 1974. Defense counsel then asked Ferrin if he had also been charged with possession of barbiturates. The prosecutor objected and arguments were then heard outside the presence of the jury. Defense counsel developed an offer of proof that on March 3, 1973, Ferrin was charged with possession of less than 200 grams of barbiturates; that on May 2, 1973, pursuant to the provisions of section 410 of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1410). Ferrin was placed on 2 years probation without entry of conviction in accordance with the terms of that particular paragraph of the Controlled Substances Act; that on June 12, 1975, Ferrin was released from probation and that Ferrin had been offered immunity in the present case while he was still on the type of probation provided for under section 410 of the Controlled Substances Act. The trial court sustained the State's objection to the cross-examination with respect to the charge as to possession of barbiturates and pointed out that under the provisions of section 410 of the Controlled Substances Act there was no adjudication of guilt.

Defendant rested his case without presenting witnesses. At the conclusion of the instruction conference, the State moved to dismiss Count II of the indictment. Since a bench trial had been started on Count II in November 1974, the trial court dismissed Count II with prejudice. The jury returned a verdict of guilty as against defendant and, as we have noted, the defendant was sentenced to a term of 1 to 3 years imprisonment.

• 1 The first issue on appeal raised by defendant is his contention that he was denied the right to effective cross-examination by the court's limitation of his inquiry into the possession of barbiturates. On the issue of the latitude to be allowed on cross-examination, the Illinois Supreme Court stated in People v. Gallo (1973), 54 Ill.2d 343, 356, 297 N.E.2d 569:

"`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 to the defendant, that a reviewing court will interfere.'"

In the instant case the testimony of Paul Ferrin clearly indicated that he had received immunity in return for his testimony against defendant. In cross-examination, defense counsel was allowed to establish that Ferrin had been charged with the same offense for which defendant was on trial. The trial court limited the cross-examination of Ferrin when defense counsel attempted to inquire into a previous charge of possession of barbiturates against Ferrin where there was no finding of guilt or a conviction. We note that at the time Ferrin testified against defendant, and when he was granted immunity in the instant case, Ferrin's term of probation on the charge involving barbiturates had terminated.

• 2 It is contended by the State that since Ferrin's probation ended prior to his testimony at trial, any bias or motive to testify falsely arising therefrom had also ended prior to Ferrin's testimony at trial, and the only motivation to testify in that fashion existed from the fact that he was granted immunity on the charge involving the same offense for which defendant was being tried. In view of the record of guilt in this case and the fact that Ferrin was clearly shown to have been offered immunity in his testimony, the limitation of the cross examination of Ferrin, in any event, would not justify a reversal. The jury was therefore properly aware of Ferrin's motivation in testifying as a means of assessing and evaluating the testimony of Ferrin. Only in the case of clear abuse of discretion, resulting in manifest prejudice to a defendant, should a reviewing court interfere with the trial court's exercise of discretion (see People v. Gallo (1973), 54 Ill.2d 343, 297 N.E.2d 569, People v. Jones (1st Dist. 1975), 34 Ill. App.3d 103, 339 N.E.2d 485). In view of the fact that the jury already understood the granting of immunity and the potential motivation of Ferrin in testifying for the State and also by reason of the fact that the witness Ferrin had completed his probation on the barbiturate charge and also in view of the instruction given to the jury in the cause as to the accomplice testimony, defendant was not manifestly prejudiced by the court's limitation on cross-examination. We do not find that there was manifest prejudice to defendant under the facts and circumstances of this case.

• 3 In the supplemental brief defendant further argues that he was denied his statutory and constitutional rights to a speedy trial (Ill. Rev. Stat. 1975, ch. ...


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