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People v. Davis





APPEAL from the Circuit Court of Grundy County; the Hon. C. HOWARD WAMPLER, Judge, presiding.


Rehearing denied October 7, 1980.

The defendant, Rondell Davis, was convicted of the October 17, 1977, robbery of a Morris, Illinois, Pizza Hut following a jury trial in the Circuit Court of Grundy County. He was sentenced to a 10-year determinate prison term.

On appeal the defendant has raised three issues which he has phrased as follows:

(1) Whether evidence of the defendant's prior burglary conviction was erroneously admitted as impeachment evidence without weighing its probative value against its prejudicial impact and on the basis of the trial judge's mistaken belief he had no discretion but to admit it as a "recent" conviction under People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695.

(2) Whether by permitting the prosecutor to improperly cross-examine and impeach two of its own critical witnesses and by threatening such witnesses with perjury, the trial judge effectively insured that their testimony would be substantially that given by them at a prior trial regardless of the truth of such testimony.

(3) Whether the record affirmatively demonstrates that in imposing a 10-year sentence of imprisonment, the trial court relied upon its erroneous belief he had a prior record of delinquency.

• 1 Prior to trial, the defendant filed a written motion to exclude evidence of his prior conviction of burglary in May of 1977. Two reasons were argued by the defendant to support his motion. First he contended that the admission of such evidence of his prior burglary conviction would be so prejudicial to him that he could not receive a fair trial. Second, he argued that his conviction of burglary does not in actuality relate to his testimonial worth and it would unjustly prejudice him. After hearing argument on the motion, the trial court granted it insofar as it applied to the case in general, but denied it in the event that the defendant chose to testify in his own behalf, ruling that the very recent prior burglary conviction could be used to impeach the defendant. At trial, the defendant testified and admitted his prior burglary conviction in May of 1977. Pursuant to the authority of People v. Spates (1979), 77 Ill.2d 193, 395 N.E.2d 563, the defendant's tactical decision to admit his prior burglary conviction rather than wait for the State to introduce it after his pretrial exclusion motion was denied did not amount to a waiver of the issue in and of itself. However, in the present case, Davis failed to preserve the alleged error of admitting his prior conviction into evidence in his written post-trial motion. Failure to raise the issue in his post-trial motion waives the issue on review. People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856. Under very similar circumstances, we held there was a waiver where the defendant had not objected at trial to the admission of evidence which he had sought to exclude by a pretrial motion and where he failed to specifically include that alleged error in his post-trial motion. (People v. Cook (1979), 78 Ill. App.3d 695, 397 N.E.2d 439.) As we stated in Cook:

"Although we find some merit in the argument that once counsel attempts to preclude illegally obtained evidence by making a pretrial motion to suppress no other action on his part should be necessary to preserve the issue on appeal, such is not the law. * * * [It is] clear that to preserve an error on appeal counsel must either object to it at the proper time (which has been interpreted by the supreme court to mean at trial (People v. Roberts (1979), 75 Ill.2d 1, 387 N.E.2d 331)) or raise it in the post-trial motion." People v. Cook (1979), 78 Ill. App.3d 695, 698, 397 N.E.2d 439, 441.

Defendant's second argument is that the trial court improperly permitted the State to cross-examine and impeach two of its own witnesses. At the trial, the State called Dennis Willis and Timothy Brown. Willis had been charged as the driver of the getaway car in this Pizza Hut robbery, and he had been acquitted in a separate trial. Timothy Brown was a juvenile, and he had allegedly procured the revolver that Davis used in the robbery for $35. Both Willis and Brown had testified at the trial of Mike Witherington who had allegedly participated with defendant Davis in the instant Pizza Hut robbery to the extent of accompanying Davis inside. Witherington had also been acquitted in a separate trial which was presided over by the same trial judge who presided over defendant Davis' trial.

During preliminary direct examination of Willis by the State he testified that he had difficulty remembering the date of the alleged Pizza Hut robbery, and whether he had observed the defendant Davis on that date. Willis had testified without difficulty May 18, 1978, at Witherington's trial but had difficulty 2 1/2 weeks later at Davis' trial on June 7, 1978. Willis' answers to the State's questions were unresponsive and unexpected in light of his earlier testimony at Witherington's trial. The trial court noted that Willis was "arrogant, cocky, and openly hostile" during the State's direct examination. Upon the State's motion, the trial court declared Willis a hostile witness and permitted the State to cross-examine him.

Similarly, Timothy Brown's testimony on direct differed in substantial respects from his earlier testimony at Witherington's previous trial to the State's surprise. The trial court again noted that Brown was unwilling to answer questions precisely and that he had answered, to the contrary, with precise answers regarding dates and conversations with defendant Davis about procuring a gun for him at the recent trial of co-defendant Witherington. Thus the court also declared Brown to be a hostile witness, permitting cross-examination by the State.

• 2 Declaring a witness hostile and permitting cross-examination and impeachment by the party who called the witness is a matter of judicial discretion. We set forth the guidelines to determine whether an abuse of that discretion had occurred in People v. Robinson (1977), 46 Ill. App.3d 713, 717-18, 361 N.E.2d 138, 141-42, where we stated:

"In order for the court to consider calling a witness as a court's witness the party asking the court to adopt the witness must lay a proper foundation. That foundation requires a showing that the witness' integrity or veracity is doubtful, that neither side desires to vouch for his testimony, that the testimony relates to direct issues in the case and the testimony sought to be elicited is necessary to prevent a miscarriage of justice. People v. Dennis (1970), 47 Ill.2d 120, 265 N.E.2d 385; People v. McKee (1968), 39 Ill.2d 265, 235 N.E.2d 625; People v. Moriarity (1966), 33 Ill.2d ...

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