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People v. Tate





APPEAL from the Circuit Court of Kankakee County; the Hon. JOHN F. MICHELA, Judge, presiding.


This is an appeal by defendant, Charles Tate, from a conviction for robbery, criminal damage to property, aggravated assault and attempt (theft) following a jury trial. On December 12, 1977, at about 10:30 p.m., Michael Maycen was working as a security guard at a Convenient Food Mart in Kankakee, Illinois. Also working in the store at that time were two cashiers, Valerie Elwyn and Phyllis Hildebrandt. There were only two customers in the store, a black male and a black female. They had entered the store together and then split up. The man walked to the meat counter and, through the store's curved mirror, Maycen observed him putting things into his coat. Maycen told one of the cashiers to lock the front door as he proceeded toward the man. Maycen told him he was under arrest and the man turned and started heading back to the meat counter. Maycen grabbed him and began to frisk him. The man pulled a package of sausages from his coat and dropped it. He then struggled with Maycen and grabbed his gun. The man went to the front of the store, pointed the gun at the cashier, and then shot the gun at the door, trying to break the lock. This attempt failed and the man ran to the back of the store and out a back door. The woman was then let out of the store.

At trial Maycen, Elwyn and Hildebrandt testified to these events and they all identified the defendant as the man who committed the offense. After the testimony of the three occurrence witnesses and two police officers, the State rested its case. The defense moved for a directed verdict, which was denied.

The defendant, in his case, contended that James Brown had committed the offense, not he. Tate claimed that on December 12, 1977, he and a friend of his, Earl White, drove to Jimmy Sanders Brown's house to pick up some of Tate's belongings. White testified that they stayed at White's house until about 10:40 or 10:45, when Tate left to pick up White's girlfriend, Nancy Fifer, from work. White and Tate picked up some other girls as well and returned to White's house. Tate left at about 1 a.m. and went to a place called the "party House," where he was told that the police were looking for him.

Another witness for the defense was Jimmy Sanders Brown, who testified that he was acquainted with a person by the name of James Brown. He testified that he had had a conversation with James Brown regarding the robbery at the Convenient Food Mart. The State objected on the ground that this was hearsay, and defense counsel made an offer of proof. The offer of proof revealed that Jimmy Sanders Brown had been aware that Tate was in jail due to the incident at the Convenient Food Mart. When the witness spoke to James Brown, he asked if James Brown had heard what happened and Brown replied, "Well, Charles didn't do that! I was in on that." Defense counsel argued that this was admissible as a hearsay exception in that it was an admission against penal interest. The court sustained the State's objection to it as substantive evidence and did not allow the evidence in, although indicating it was admissible for impeachment purposes.

The defense then called James Brown as a witness. Upon questioning, he denied that he had made the above comment to Jimmy Sanders Brown and also denied making any admissions to the commission of the offense. Upon request of defense counsel, James Brown was declared a hostile witness and defense counsel cross-examined him. When defense counsel tried to impeach him by introducing prior convictions of robbery and retail theft, the State objected, and the trial court sustained the objection.

Lori Ann Fulton next testified for the defense. She testified that she lived with her boyfriend, James Brown, and her mother and that it was she who was in the store when it was robbed. She denied that she had told a friend that she was going to the store with James Brown.

Following the trial the jury found the defendant guilty of all four counts. On appeal, the defendant raises five issues: (1) whether the trial court erred in prohibiting the defense from cross-examining James Brown with respect to his record of prior convictions for robbery and theft; (2) whether the trial court erred by refusing to admit testimony that James Brown had admitted committing the offenses for which defendant was charged as substantive evidence; (3) whether the prosecutor violated the defendant's right to due process and Supreme Court Rule 412 by failing to disclose to the defendant information that James Brown had committed an offense similar to the crime with which the defendant was charged; (4) whether the defendant's conviction for criminal damage to property must be reversed because the State failed to prove an essential allegation of the information; and (5) whether the defendant should be given a credit for the full amount of the $250 fine because he was incarcerated for 52 days on a bailable offense and thus was entitled to $5 per day credit for each day he was incarcerated. We affirm in part and reverse in part.

Defendant's first issue on appeal is whether the trial court erred in prohibiting the cross-examination of James Brown regarding his prior convictions for robbery and theft. Defense counsel called Brown as a witness, and during direct examination requested that Brown be declared a hostile witness. The request was granted. Defense counsel attempted to cross-examine him regarding prior convictions. The State objected, and the court sustained the objection. The defendant contends that this was prejudicial error.

• 1 This issue deals with the right of a party to impeach his own witness. The general rule has traditionally been that a party cannot directly impeach his own witness. Through the years, however, this rule has been subject to erosion. (See People v. Wesley (1959), 18 Ill.2d 138, 163 N.E.2d 500.) Presently, Illinois Supreme Court Rule 238 (Ill. Rev. Stat. 1979, ch. 110A, par. 238) specifically provides that a hostile witness may be examined by the party calling him as if under cross-examination. However, it does not state the means by which the witness may be impeached. Specifically, the issue in this case is whether a party may impeach its own hostile witness by introducing evidence of prior past convictions. We believe that a party may introduce such evidence.

In Chambers v. Mississippi (1973), 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038, the United States Supreme Court emphasized the importance of cross-examination at trial. In Chambers, Mississippi had a common law rule that a party could not impeach its own witness. The court held that this "voucher" rule denied the defendant due process. The court stated:

"The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the `accuracy of the truth-determining process.' [Citations.] It is, indeed, `an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.' [Citation.] Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. [Citation.] But its denial or significant diminution calls into question the ultimate `"integrity of the fact-finding process"' and requires that the competing interest be closely examined. [Citation.]" 410 U.S. 284, 295, 35 L.Ed.2d 297, 309, 93 S.Ct. 1038, 1046.

Impeachment of a witness is an integral part of cross-examination. To inhibit the ability to impeach is to lessen the effectiveness of cross-examination. In the instant case there is no competing interest which would justify prohibiting a party from impeaching its own witness by prior convictions.

The State contends that James Brown could not be impeached by prior conviction. The authorities upon which the State relies have dealt with the issue of impeachment from a foundation based on the voucher rule. In view of Chambers, this premise is invalid. Therefore, where a witness is hostile, we can see no reason to prohibit a party from impeaching its own witness by prior convictions.

While we believe that the trial court's failure to do so was error, we believe it to be harmless error. The witness was impeached through proof of a prior inconsistent statement. We believe that in the instant case evidence of the prior convictions was cumulative and that, in view of the impeaching evidence that was admitted, the exclusion of the prior convictions was harmless error.

• 2 Defendant's second issue is whether the trial court erred by refusing to admit testimony that James Brown had admitted committing the offenses for which the defendant was charged as substantive evidence. At trial the defense presented the testimony of Jimmy Sanders Brown. Through this witness the defense sought to establish that James Brown had made an admission that he, and not the defendant, had committed the offense for which the defendant was charged. The State objected to the introduction of this testimony, arguing it was hearsay. After an offer of proof the trial court sustained the State's ...

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