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People v. Bianchi

OPINION FILED MAY 13, 1981.

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

v.

JANICE BIANCHI ET AL., DEFENDANTS. (CATHY SCENIAK, A/K/A CATHY BIANCHI, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Will County; the Hon. DWIGHT W. McGREW, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the Circuit Court of Will County, defendant Cathy Sceniak, a/k/a Cathy Bianchi, was convicted of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b)). A co-defendant, Janice Bianchi, was acquitted. Cathy Bianchi was subsequently sentenced to the Department of Corrections for a term of 8 years. On appeal from the judgment entered on the jury verdict, defendant Cathy Bianchi raises three issues for our consideration: First, was she deprived of a fair trial as a result of the prosecutor's inflammatory and prejudicial rebuttal argument, and/or his failure to complete the impeachment of a defense witness; second, did the trial court err in not granting defendant's motion for substitution of judges; and finally, did the trial court err in refusing to allow the defendant to impeach the State's principal witness, Nancy Howard, with evidence that contrary to her own testimony, she remained a drug addict subsequent to defendant's arrest, and sold heroin within two months of defendant's trial.

It is not necessary to detail the facts of this case in order to resolve the various issues presented. The evidence introduced at trial established that on seven occasions from March 16, 1978, to April 23, 1978, Nancy Howard made both controlled and uncontrolled heroin purchases from the defendant. At the time these purchases were made, Howard, who admitted previous heroin addiction, was a special employee of the Metropolitan Area Narcotics Squad (MANS). Tape recordings of telephone conversations between Howard and the defendant were admitted into evidence, as well as defendant's notebook which contained records of heroin credit transactions. The defendant did not deny making six heroin sales to Howard, but contended that she was entrapped and consequently absolved from all criminal liability. She also contended that the remaining heroin purchase was made by Howard from Joanne Harrison, a heroin addict who, at the time of the purchase, was living with the defendant. Joanne Harrison did not testify at the trial.

• 1, 2 The first allegation of error made by the defendant is directed to the response of the assistant State's attorney to rebut defense counsel's comments on the State's failure to call Joanne Harrison as a rebuttal witness. In his closing argument, the defense counsel made the following statements:

"Now, it's interesting to note that Joanne Harrison hasn't been called by the State on rebuttal evidence. The evidence is undisputed that Joanne Harrison sold an ounce of dope to Nan Howard. She sold some to Nan Howard. She didn't come to court to rebut that. I'm sure Joanne Harrison would say, no, I never sold her the ounce. Nan Howard did testify that Cathy sold her the dope on April 7th, but again, remember this; my client's guilt or innocence stands on the credibility of Nan Howard."

On rebuttal, the assistant State's attorney responded as follows:

"He commented about Joanne Harrison not being called as a witness. Who was Joanne Harrison living with? Bianchis. Who has control of this witness? Bianchis. The reason I can't call her as a witness, assuming I can locate her, is because I can't vouch for credibility. The reason he can't call her as a witness is because she may slip up on the stand."

Defense counsel objected to these comments, but the court neither sustained nor overruled that objection.

On appeal, the defendant argues that in making the above-quoted response in rebuttal, the prosecutor drew grossly improper and prejudicial inferences from defendant's failure to call Joanne Harrison as a witness which deprived her of a fair trial. (See People v. Bolton (1976), 35 Ill. App.3d 965, 343 N.E.2d 190). We disagree. The implication arising from the assistant State's attorney's comment as a whole is that the defendant was loath to have Ms. Harrison testify on her behalf because her testimony would ultimately prove to be unfavorable. "Generally, '[i]t is improper for a prosecutor to comment on a defendant's failure to call a witness where the comment suggests that the witness would have testified unfavorably to the defendant and the witness is as accessible to the State as he would be to the defendant.'" (People v. McElroy (1980), 81 Ill. App.3d 1067, 1073, 401 N.E.2d 1069, 1074, quoting People v. Gamboa (1975), 30 Ill. App.3d 242, 250, 332 N.E.2d 543, 549.) Given the fact that Ms. Harrison had been living with the defendant, it is a reasonable and fair inference that she was more accessible to the defendant than to the State. (See People v. Carr (1969), 114 Ill. App.2d 370, 262 N.E.2d 912.) Consequently, we do not consider the implication made by the prosecutor that the defense declined to make Ms. Harrison its witness because her testimony would be adverse to defendant's testimony to be improper. His remarks were generally in response to the defense counsel's query as to why the State had failed to call Ms. Harrison to testify, and were not beyond the scope of fair comment. People v. Martinez (1978), 62 Ill. App.3d 7, 377 N.E.2d 1222.

• 3 Although we find the assistant State's attorney's comments, taken in their entirety, not to be improper, we must express our disfavor with the prosecutor's statement that he could not call Ms. Harrison as a witness because he could not vouch for her credibility. In so stating, the prosecutor, albeit in a backhanded manner, placed the integrity of the State's attorney's office behind the credibility of its own witnesses. We have directed this very same State's attorney's office to refrain from making similar comments in the past because such statements are unfairly advantageous to the State and prejudicial to the defendant. (People v. Valdery (1978), 65 Ill. App.3d 375, 381 N.E.2d 1217.) Unlike Valdery, where improper and prejudicial remarks by the prosecutor in closing argument were multitudinous, here this one comment is isolated and by itself does not warrant reversal. This fact, however, does not make the remark any less improper, and it is not to be condoned.

• 4 The second comment made by the assistant State's attorney that the defendant contends was grossly prejudicial and highly improper also occurred during the prosecutor's closing argument:

"You've heard enough from everybody in this case. My last comment about the evils in this case, about the — he said the sickness. Now, after listening to all the witnesses in this case, I know the real scope of the heroin problem in the Joliet area. Imagine, as you head the witnesses, addicts with seven hundred and fifty dollar a day habits, addicts that are unemployed, or sporadically employed. They, in turn, have to go out and commit other crimes to support their habits to buy the poison."

The defense counsel's objection to this comment was overruled.

On appeal, the defendant contends that these remarks were grossly prejudicial because there was no evidence in the record to support the prosecutor's statement that the witnesses who admitted heroin addiction (the defendant, Delia Moreno, Mark Pesavento, and Fred Kokaly) committed crimes to support their habits. On the contrary, there is direct evidence that both the defendant and Delia Moreno sold heroin, and the fact that Pesavento and Kokaly dealt in the narcotics trade to support their habits can be reasonably inferred from their testimony. We consequently reject the defendant's contention that the prosecutor's statement finds no basis in the evidence.

The final comments by the assistant State's attorney made during rebuttal that the defendant claims constitute ...


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