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People v. Lake

OPINION FILED JULY 7, 1978.

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

v.

AUDEY F. LAKE (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Vermilion County; the Hon. JAMES K. ROBINSON, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Literally caught red-handed

Burglary — jury — guilty — 4 to 12 years.

The trial court is affirmed.

Neither the facts nor the evidence are disputed. Lake, Smith, and Cronk drove to the company service center of Fleming Weller, Inc., in the early morning hours. Lake and Smith cut a hole in the fence surrounding the service center, kicked open the doors of the garage and a storage shed and stole a large, heavy, red toolbox and some equipment. After an attempt to sell the stolen goods, the police were apparently notified and they arranged for a surveillance. Their information was to the effect that three men driving a black-over-gold automobile had attempted to sell some stolen property. During the surveillance, the police officers observed Lake, Smith, and Cronk as they got out of a car which matched the automobile description. A few minutes later, all three of the men went to the rear of the automobile with another individual and when the trunk of the car was opened, the officers saw a large, red toolbox. All three (Lake, Smith and Cronk) were apprehended. The red toolbox (which bore the name of "T.S. Tatlock") was later identified by its owner as having been taken from the garage of Fleming Weller, Inc., where the owner was employed as a mechanic. Furthermore, a criminologist with the Illinois Bureau of Identification testified that certain footprints lifted from the doors of the garage and the storage shed displayed tread design similar to those of the shoes worn by defendants Lake and Smith at the time of the arrest.

Cronk — an accomplice in the burglary — turned State's evidence and testified on behalf of the prosecution at Lake's trial.

Lake challenges not the quantum of proof, nor the evidence, nor his sentence. On only two issues does he ground this appeal: (A) the trial judge's limitation of his cross-examination of Cronk, the accomplice witness; (B) an inaccurate jury instruction.

A

Cronk was called to testify for the State and his testimony was essentially this: He had been a co-defendant in the case on trial; he was also charged with the burglary; he agreed to testify for the State; his attorney and the State's Attorney had entered into negotiations regarding his testimony; it was agreed that his charge would be dropped to theft under $150 in return for his testifying; and there had been no specific agreement as to his possible sentence. Defense counsel on cross-examination attempted to inquire further of Cronk about Cronk's understanding of the consequences of the plea agreement, including the respective sentencing differences between burglary and theft under $150, and whether Cronk understood that burglary is a felony and theft under $150 is a misdemeanor. The State objected and the trial court sustained that objection with these comments:

"THE COURT: You may inquire whether he is being given an opportunity to plead to an offense which carries a lesser penalty if you wish but not get into what the penalty or how many years or anything of this type. That gets the point across on whether he is aware of the fact he is being allowed to plead guilty to an offense which carries a lesser penalty."

Defense counsel then elicited from Cronk the accomplice's realization that he was pleading to a less serious offense and that he had been advised by his attorney that the plea agreement "was a good deal."

In ruling on this point when it was again raised in the post-trial motion, the trial judge explained that he had sustained the objection since "it was the admitted intention of counsel to examine the witness with regard to his knowledge of the penalty attached to the exact crime charged against the defendant" and that "the prejudicial impact of the jury of allowing testimony of the exact penalty to go before them for the crime to which the defendant then stood charged would exceed the rather questionable benefit that would accrue to the defendant through the legitimate use of that same testimony." In the defendant's brief, he acknowledges the court's reasoning: "Although the trial court correctly realized that there was a possibility of prejudice by allowing the jury to learn the penalties for burglary, in this case the defendant's right to confrontation is far more important than any possible prejudice."

• 1, 2 The trial judge correctly noted that any defendant is entitled to cross-examine a witness as to any matter which tends to explain, modify, or discredit his testimony, or which tends to show that his testimony might be affected by interest, bias, or motive to testify falsely. Although the scope of cross-examination is generally left to the trial court's discretion, the accused must be given wide latitude to establish bias or motive. (People v. Barr (1972), 51 Ill.2d 50, 280 N.E.2d 708.) And particularly wide latitude should be allowed where the witness is an accomplice. (People v. Bergeron (1973), 10 Ill. App.3d 762, 295 N.E.2d 228.) Where the defendant's theory is that the State's witnesses are unbelievable, it is reversible error not to allow cross-examination on matters which would reasonably tend to show bias, interest, or motive to testify falsely. People v. Baptiste (1976), 37 Ill. App.3d 808, 347 N.E.2d 92.

Particularly does defendant point to Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, where it was held that the refusal to allow a defendant to cross-examine a juvenile witness as to his probationary status denied the accused his sixth amendment right to confront the witnesses against him, notwithstanding a State policy to protect the anonymity of juvenile offenders. It was held that the defendant's right to effective cross-examination of an adverse witness is paramount to a policy protecting the confidentiality of the juvenile record. But such is clearly not the case here since Lake was afforded ample opportunity to thoroughly cross-examine his accomplice, Cronk. Unlike Davis (in which the State's interest shielded the ...


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