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People v. Brown

OPINION FILED DECEMBER 5, 1980.

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

v.

JUSTIN WAYNE BROWN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROGER KILEY, Judge, presiding.

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

After a jury trial, defendant was convicted of attempt murder and sentenced to not less than 5 nor more than 25 years. On appeal, he contends he was denied a fair trial because the trial court limited his cross-examination of State's witnesses.

Defendant makes no contention that guilt was not established beyond a reasonable doubt and, accordingly, only the evidence pertinent to the issues raised will be set forth. David Binns testified that he was in his car and about to exit a parking lot when defendant, accompanied by an unknown male passenger, drove into the lot and parked. Binns recognized defendant (a prior acquaintance) and his automobile (a two-tone brown Cadillac). The unknown man remained in the Cadillac as defendant walked to the car belonging to Binns and said, "something about `you owe money' or something like that." Binns could not hear what else was said because of the loud volume of his car radio and, as he lowered the volume, he was struck by a shotgun blast in the left arm by defendant's unknown companion. *fn1 He started to drive away, and a second blast struck him in the head and eyes. Binns also stated that he did not and never had owed any money to defendant.

A passing motorist, John Rudolph, testified that he observed two men (whom he could not identify) standing next to a car in the parking lot and saw one of the men pull a weapon from under his coat and fire it into an automobile, after which the other man went to a brown Cadillac in the parking lot. He then heard a second shot fired as the victim was driving away — following which the armed man returned to the Cadillac. It appears that Binns was taken by a police vehicle to the Mount Sinai emergency room. Later, the police brought defendant to the hospital, and Binns identified him as one of his assailants.

Police Officer Ducar testified that he had a conversation with Binns at the hospital and that Binns did not tell him that two men had been involved in the shooting. He said, however, that Binns appeared to be in great pain and that the conversation was not completed because a physician asked that it be terminated.

Alberta Walker (a waitress at a restaurant near the scene of the shooting) and James Searcy (owner of that restaurant) testified for defendant, essentially that he was in the restaurant at the time of the alleged shooting.

OPINION

Defendant essentially contends that in erroneously restricting the cross-examination of State's witnesses, the court deprived his counsel "the latitude to impeach complainant's identification." Initially, we note that the latitude to be afforded in the cross-examination of witnesses rests largely in the trial court's discretion and, absent a showing of abuse of that discretion, its determination will not be disturbed on appeal. People v. Blakes (1976), 63 Ill.2d 354, 348 N.E.2d 170; People v. Bristow (1980), 80 Ill. App.3d 535, 400 N.E.2d 511; People v. Baker (1979), 78 Ill. App.3d 411, 396 N.E.2d 1174.

Defendant first argues that his cross-examination of Binns as to a conversation he had with police officers at the scene of the occurrence was unduly limited. On direct examination, Binns testified that he was unable to hear the first part of what defendant had said when he approached Binns' car in the parking lot, but he did hear the latter part when defendant said, "something about `you owe money' or something like that." On cross-examination, an objection was sustained when defendant attempted to impeach Binns on the basis of a police report stating that an "unknown conversation" had taken place between Binns and his assailant. It is the position of defendant that the statement in the report was inconsistent with Binns' testimony and that the court erroneously denied its use for impeachment.

• 1 As stated in People v. Thomas (1979), 72 Ill. App.3d 186, 198, 389 N.E.2d 1330, 1339:

"Cross-examination as to prior inconsistent statements is a well-established form of impeachment. However, as a threshold consideration, the inconsistency must be substantial and relate to a material and not a collateral or irrelevant matter. (People v. Dascola (1926), 322 Ill. 473, 153 N.E. 710.) The test to be applied is whether the inconsistent statement has a reasonable tendency to discredit the direct testimony on a material matter. (People v. Rainford (1965), 58 Ill. App.2d 312, 320-21, 208 N.E.2d 314, 318-19; McCormick, Evidence, ch. 5, § 34, at 64 (1954)). Furthermore, a witness is not discredited by a slight variance between his testimony and prior statements, absent a material inconsistency or contradiction. People v. Boyd (1974), 22 Ill. App.3d 1010, 318 N.E.2d 212."

• 2 Here, we reject defendant's contention that the trial court erred in not allowing impeachment of Binns by a purported statement in a police report that he had "an unknown conversation" with defendant. The report itself is not included in the record, and the only reference to it appears in a side bar conference between the court and the attorneys, in which defense counsel in support of his argument that the statement was material and inconsistent, stated, "All I am saying is that this man takes the stand and says he didn't know but pieces of the conversation. The police officer didn't say anything about any conversation other than it was unknown. He takes the stand today and expects us to believe that it was argument about me." No offer of proof was made by defendant as to the actual content of the police report or that the maker would testify such a statement was in fact made by Binns. Moreover, there is nothing to indicate that the report contained the recording of any specific language used by Binns, and it appears that the phrase could have been merely the understanding or conclusion of the maker as to what Binns said. In view thereof, we are of the belief that the record does not establish that such a statement was made to the police by Binns and, on that basis, the trial court properly denied its use for impeachment. Assuming, however, that Binns did inform an officer that he had "an unknown conversation" with his assailant, we consider it not to be substantially inconsistent with his trial testimony that he was unable to hear the first portion of what defendant had said but did hear the latter part, which was "something about `you owe money' or something like that." The difference between his testimony and the purported statement to the police lies in the reference to money being owed, which was denied by Binns and, at most, has only slight inconsistency. Furthermore, whether or not money was owed has little, if any, materiality to the issues involved.

• 3 Secondly, defendant contends that the court improperly limited cross-examination of Binns relating to his conversation with hospital personnel. The following ...


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