APPEAL from the Circuit Court of Rock Island County; the Hon.
JOHN DONALD O'SHEA, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Bernice Schomer appeals from a judgment of the Circuit Court of Rock Island County, in which she was convicted of solicitation to commit murder, following a jury trial. She was sentenced to a term of 10 to 30 years in the penitentiary.
On appeal in this court, defendant asserts that she was denied a fair trial when the State was permitted to cross-examine a defense witness concerning the prior request of that witness for immunity before the grand jury. It is contended by defendant that the prior request for immunity had no impeachment value and that prejudice resulted from its admission into evidence. Defendant also contends that the trial court misconceived the limits of his discretion in sentencing the defendant. The record in this case indicates that late in 1976, defendant Bernice Schomer and Anthony Sanchez, her son, were charged by information with murder and conspiracy, as a result of the shotgun murder on December 11, 1974, of William Cotton in Rock Island, Illinois. The information against the defendant Schomer was later amended to include the charge of "solicitation to commit murder" for which she was ultimately convicted. Schomer and Sanchez were tried jointly on the charges in March 1977.
At the trial, the State presented evidence establishing that William Cotton was shot to death with a shotgun outside his apartment in the early morning hours of December 11, 1974. Evidence recovered from the scene included a spent shotgun shell, wadding from a shotgun shell and shotgun shell pellets. The principal witness against both Sanchez and Schomer was Dewayne Mark Cunningham, who was an accomplice in the murder, and who had been granted immunity in return for his testimony. The testimony of Cunningham established that two days prior to the murder, the victim, William Cotton, had been involved in a dispute with one Bernadette Kiel at the home of Anthony Sanchez. Kiel was living with Sanchez at the time. The substance of the dispute concerned money which was owed to Cotton by Kiel and the dispute terminated with Cotton being driven from the home at gunpoint by Schomer. Witness Cunningham had overheard a conversation between defendant Schomer and Anthony Sanchez in which Schomer had told of the circumstances of the dispute to Sanchez and told Sanchez that if he didn't kill Cotton, she would.
Cunningham also testified that on December 10, 1974, Sanchez stated to Schomer that he, Sanchez, was going to "take care" of Cotton that night. Schomer responded, according to Cunningham, by telling Sanchez to take care of everything and to make sure that Cotton didn't talk. Sanchez then told Schomer that he needed some shells. Schomer said she might have a couple of shells in her house. Sanchez, Schomer, and Cunningham then drove to Schomer's house and Sanchez and Schomer entered the kitchen area. When they returned from the kitchen, Sanchez carried a 12-gauge shotgun shell which he showed to Cunningham. Schomer, at that time, then told Sanchez she would call Joseph Martin to see if he had any shells. Later that evening, according to Cunningham, Joseph Martin arrived at the Sanchez house, discussed shotgun shells with them, and then left. A short time later, when Martin had returned, Sanchez went out alone to talk with him. Sanchez returned to the house with a shotgun shell which he showed to Cunningham. Sanchez then loaded a shotgun with the shell previously obtained from Schomer and, also, with the one he had gotten from Martin.
Cunningham also testified that later that same evening he and Sanchez had waited outside Cotton's residence for several hours, anticipating Cotton's return from work. Shortly after 3 a.m. Cotton returned and, as he went to the back door of his home, Sanchez pointed the gun at Cotton and, as Cunningham started to run, Cunningham heard two shotgun blasts.
Two other witnesses testified that Sanchez, subsequent to the murder, had shown them a 12-gauge, bolt-action shotgun. One witness, John Carroll, testified that Sanchez had approached him to see if he wished to purchase the gun. The other witness, Ronnie Shelton, corroborated Cunningham's testimony that Sanchez had shown him the shotgun, which Cunningham knew to be the one Sanchez had used to kill Cotton. Shelton also testified that Sanchez indicated that anyone who messed with him (Sanchez) would "get taken out of the game."
Another witness called by the State was Steve Gortva, an inmate at Joliet State Penitentiary, where he was serving a sentence for rape. Gortva testified that in November 1976, Sanchez had told him that he had killed Cotton and that subsequent to that statement, Sanchez had threatened to kill him (Gortva) if he told anyone. Gortva also testified that he was not coerced into testifying because of any threats nor was he receiving any special consideration for his testimony as to the Sanchez conversation with him admitting the shooting.
After the State had rested, the defense called Joseph Martin to testify, and Martin denied ever talking to Bernice Schomer about shotgun shells. He also denied ever supplying Sanchez with any shells and talking with Sanchez on the day before the murder. The State cross-examined Martin and brought out that Martin had dated Mary Sanchez, a sister of defendant Anthony Sanchez and a daughter of Schomer. The State also brought out on cross-examination, over objection by the defendant, that Martin had requested immunity prior to his testimony before the grand jury.
The jury returned verdicts of guilty against Schomer on the solicitation and conspiracy counts and as against the defendant Sanchez on the murder and conspiracy counts. The defendant Schomer was then sentenced to 10 to 30 years in the penitentiary on the solicitation conviction.
Defendant filed a motion in this court, after the filing of the appeal, to add an additional issue raising the question of whether the State's cross-examination of the defendant's witness Martin, concerning the witness' prior request for immunity, was improper and, also, whether it was of such character as to require reversal. The motion was, on the basis of the representation of the defendant, filed by reason of the opinion of this court in People v. Godsey (3d Dist. 1978), 57 Ill. App.3d 364, 373 N.E.2d 95. We have taken such motion with the case for consideration. The defense in the argument in this court contends that the cross-examination which disclosed that Joseph Martin had requested immunity prior to his grand jury testimony in the case was such as to require or justify reversal.
1 As we have previously noted, Martin was called by the defense at the trial and in his testimony denied talking with Schomer about shotgun shells and denied supplying Sanchez with any shells. On cross-examination, in addition to establishing that Martin had been dating the daughter of Schomer and the sister of Sanchez, the State was allowed to bring out that Martin requested immunity prior to testifying before the grand jury. The defense argues that Martin's request for immunity had no impeachment value and that its admission into evidence prejudiced defendant Schomer by discrediting her most important witness. In support of the defense, the appellant relies on People v. Godsey to which we have referred. In Godsey, the defendant's wife and brother testified on his behalf and the State was allowed to bring out, for impeachment purposes, that they had both utilized the fifth amendment in the grand jury proceedings concerning the criminal matter then before the trial court. We found there that the prosecution's use of the prior invocation of the fifth amendment before the grand jury was error, but we also found in that case that the error was harmless in view of the record in the case. In our opinion in Godsey we relied heavily on the reasoning of two Federal appeals courts>' decisions (United States v. Rubin (5th Cir. 1977), 559 F.2d 975; United States v. Tomaiolo (2d Cir. 1957), 249 F.2d 683). We there expressed our concern that the use of a witness' prior silence to impeach him undermines the protections guaranteed by the fifth amendment and tends to encourage the evils that the amendment was intended to remove. (People v. Godsey (3d Dist. 1978), 57 Ill. App.3d 364, 372, 373 N.E.2d 95.) In the Godsey case, referring to Rubin and Tomaiolo, we also noted, depending on the circumstances of a particular case, a witness' use of the fifth amendment before a grand jury may not be at all inconsistent with later exculpatory testimony given at that trial. (See also Grunewald v. United States (1957), 353 U.S. 391, 1 L.Ed.2d 931, 77 S.Ct. 963.) The distinguishing feature in those cases from the instant case is that, in the other cases, the prosecution used a defense witness' prior silence before the grand jury, under claim of the fifth amendment, to impeach said witness at a subsequent trial. In the instant case, it was not silence before the grand jury, nor the use of the fifth amendment which was brought out to impeach Joseph Martin's exculpatory trial testimony. The impeachment evidence allowed in by the court was Martin's own request for immunity, made to the prosecutor at the outset of the grand jury testimony, before any possibly incriminating question had been asked. Such request as Martin made is not equivalent to silence resulting from use of a constitutional privilege against self-incrimination. By his request for immunity in exchange for testimony before the grand jury, Martin indicated that his testimony would likely be incriminating to him, Martin, as well as possibly helpful to the prosecution in the case against Sanchez and Schomer. This attempt to strike an immunity bargain with the State was inconsistent with the totally exculpatory statements as to himself and defendants Sanchez and Schomer made subsequent to the grant of immunity in his testimony before the grand jury and at the trial. The trial court in the instant case went so far as to conclude that by requesting and receiving immunity and then offering only exculpatory statements, Martin had perpetrated a fraud upon the grand jury, the prosecutor and the court. The trial court felt that this fraud was a circumstance for the jury to consider in weighing Martin's credibility. Whether or not such conduct on the part of the witness constituted a fraud upon the judicial system, we find Martin's request for immunity to be sufficiently inconsistent with his later exculpatory testimony at trial so as to justify its use for impeachment purposes. There was no fifth amendment claim by Martin in procedures before the grand jury or in the trial in the instant case.
Evidentiary matters of the character under consideration are normally within the discretion of the trial court and the trial court's decision thereon will not be reversed unless there is an abuse of discretion shown and that it results in prejudice to the defendant. People v. Gardner (5th Dist. 1977), 47 Ill. App.3d 529, 362 N.E.2d 14.
We conclude that the cross-examination for impeachment purposes was proper and find no abuse of discretion in the court's allowance of cross-examination to disclose the previous statement in which Martin ...