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People v. Thibudeaux

OPINION FILED JUNE 26, 1981.

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

v.

THEODORE THIBUDEAUX, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

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

Rehearing denied August 21, 1981.

After a jury found defendant guilty of attempt armed robbery and burglary, he was sentenced to concurrent terms of from 6 to 20 years. On appeal, he contends that (1) he was prejudiced by not being permitted to interview a prosecution witness; (2) the trial court erred (a) in denying him a continuance following the State's filing of a supplemental discovery answer, (b) in denying a defense motion to prevent the State from impeaching defendant with prior convictions, and (c) in restricting the scope of cross-examination of a prosecution witness; (3) the prosecutor's opening statement improperly referred to certain evidence; (4) the State failed to establish an adequate foundation for the admission of certain fingerprint evidence; (5) the prosecutor made prejudicial comments in closing argument and was unfairly given more time to argue than was defendant; and (6) the trial court improperly instructed the jury.

Louis Almeida testified that he was present when defendant helped plan the invasion on the morning of January 17, 1975, of the Chicago home of Herman Alland, and that he was present with defendant at the scene of the crime and later when defendant admitted his involvement. According to Almeida, the home invasion was planned on January 16, 1975, at a meeting in the house of Joe Neary, during which defendant told him and others present of receiving a tip that $23,000 could be taken from the Alland house and that he (defendant), Martin Fanning, and Harold Stevens would enter the house with Almeida acting as lookout. Almeida further testified that the four men drove to the scene later that night in three separate cars, one of which was a 1966 Mercury; that he heard defendant say they were first going to cut the telephone wires; that defendant, Fanning, and Stevens then left while he (Almeida) stayed behind; that 15 minutes later he heard shots coming from the direction of the Alland house; that after he left the scene, he met defendant at a house in Calumet City where defendant described how he, Fanning, and Stevens, had approached the front door of the house and, when they entered, the shooting started; that defendant said he and Stevens were fleeing to the north when he saw two policemen chase Stevens; and that he stole a bicycle to escape.

Sergeant Richard Bruski testified that an Area Five Robbery unit received a tip concerning the plan for an invasion of the Alland home and that nine policemen had been positioned in the house when defendant, Fanning, and Stevens arrived; that he was stationed in the front room at about 11:30 p.m. that night when he heard some movement outside the house, and a short while later he noticed the phone was dead; that at about 3:25 a.m. he saw an automobile pass by the house and then heard movement at the front door, after which there was a loud crash as the door was broken open; that two men came through the door, one with a pistol in his hand; that he (Bruski) shouted, "Police, halt!" but the men ignored his order; and that the officers in the room opened fire, killing one man (Fanning) while the other escaped.

Lieutenant William Corcoran testified that after the shooting the police officers inside the house ran out in pursuit of the other two men; that he ran north past two houses and then through a gangway to reach an alley behind the houses; that he heard another officer yell, "Here he is. He has a gun," and then he saw Stevens armed with a handgun; that Corcoran and another officer then fired at and killed Stevens; that a short time later he saw defendant appear in a gangway and was able to view him for several seconds from a distance of 30 feet; that he recognized defendant since he had seen him three or four times in person, knew him by name, and had examined a picture of him about 12 hours before the incident; that he yelled at defendant to stop, but he fled to the north; and that he (Corcoran), in pursuit, yelled "Stop, police!" and fired at defendant, but he escaped. Corcoran further testified that after his encounter with defendant, he immediately informed Lieutenant Morrow and Sergeant Joseph Mucia that he had seen defendant and gave a description of him.

Sergeant Mucia testified that after Corcoran told him of seeing defendant, he issued a radio message giving defendant's name and description and stating that he was wanted for armed robbery and home invasion; that later that morning, he sent a bulletin to all Illinois police departments informing them defendant was wanted for those crimes; that a day or two later, he went to defendant's house in an unsuccessful attempt to arrest him; that on January 20, he submitted a "stop order" to hold him if he were arrested on another charge; and that on January 27, he obtained a warrant for defendant's arrest.

Officer Erich Kleist testified that on the morning of January 17, at the central communication section of the Chicago Police Department, after receiving a message from a dispatcher, he put out an "all-call" broadcast giving defendant's name and description, stating that he was wanted for home invasion and that he was last seen at 1408 North Mayfield. *fn1 Kleist also testified that the broadcast was made on the authority of an Area Five Robbery unit and was recorded on a card which was time-stamped 4:11 a.m., January 17 (about 45 minutes after the home invasion).

OPINION

• 1 Defendant first contends that the failure of the trial court to rule on his motion for a pretrial interview with Louis Almeida impaired his ability to cross-examine him and to prepare rebuttal testimony. The State points out, however, and the record so indicates, that the court never ruled on the motion and that defendant never attempted to obtain such a ruling.

In People v. Kostos (1961), 21 Ill.2d 496, 173 N.E.2d 466, defendant contended that the trial court erred in failing to rule on a defense motion during trial to suppress evidence of defendant's automobile registration card. The trial court said that it would not rule on the motion until all the witnesses had testified, and the record disclosed no subsequent ruling on the motion or any request by defense counsel for such ruling. The supreme court held that the issue had been waived and that, in any event, defendant suffered no prejudice by the failure to rule because evidence of defendant's ownership was stipulated. Similarly, in People v. Waller (1977), 67 Ill.2d 381, 367 N.E.2d 1283, the trial court reserved its ruling on the admissibility of certain evidence to which defendant had objected but failed to later request a ruling. The supreme court held that the moving party was responsible for obtaining a ruling, stating that:

"[T]he failure to insist upon a ruling on the objection waived the issue, where the court stated that it reserved its ruling, unsuccessfully requested a `submission of law' on the subject from counsel, and then, sitting as trier of fact, rendered a verdict without ruling on the admissibility of the testimony." (67 Ill.2d 381, 386, 367 N.E.2d 1283, 1285.)

Thus, here, the responsibility was on defendant to obtain a ruling on his motion, and his failure to do so waived that issue on appeal. A different conclusion might be warranted where error is plain or defects in trial court rulings affect substantial rights (Ill. Rev. Stat. 1977, ch. 110A, par. 615(a); Waller), but imperfectly preserved questions will be considered on appeal only where the evidence is closely balanced (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856), which is not so here.

Even assuming the issue was properly preserved, we find that this contention would be without merit. Defense counsel did in fact interview Almeida before he testified, and the record does not disclose, nor does defendant now say, how he was prejudiced by not obtaining an earlier interview. In this regard, we note that defendant did not move for a continuance after the interview and that Almeida's background and reputation as one who had surrendered his life to crime also were well-known to defendant's counsel at trial, as indicated by his detailed, lengthy cross-examination which included questions concerning crimes for which he had never been charged. Moreover, Almeida's role in the incident was explained in a copy of an FBI report giving Almeida's account of the incident which was furnished to defendant before trial, and he does not complain of the inadequacy of that report.

Defendant cites several cases, assertedly for the proposition that it is a denial of the accused's sixth amendment rights to prevent his access to an informer to determine whether the informer could provide favorable testimony. Our reading of those cases suggests, however, that they do not apply here, as they stand for the general rule that under certain circumstances the prosecution must disclose the name of an informer or other witness and make him available for an interview with the defense. (See Roviaro v. United States (1957), 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623; People v. Lewis (1974), 57 Ill.2d 232, 311 N.E.2d 685; People v. Glover (1971), 49 Ill.2d 78, 273 N.E.2d 367; People v. Pinchott (1977), 55 Ill. App.3d 593, 370 N.E.2d 1289.) As the foregoing discussion indicates, the trial court's failure to rule on the motion in question did not violate the basic protection afforded under this general principle.

Finally, defendant calls our attention to the fact that a transcript of the pretrial proceedings concerning the denial of his request for an interview had been ordered but not yet filed at the time this case was argued on appeal. At this writing, no motion to supplement the record with those proceedings has been presented, but in view of our determination, were the record to indicate such denial, it would not alter our finding. We conclude, therefore, that defendant has not shown how the lack of a more extensive interview with Almeida unfavorably affected his defense, and our reading of the record in light of the case law reveals that defendant was not denied reasonable opportunity to apprise himself of Almeida's testimony.

Defendant next contends that the trial court erred in refusing to grant a continuance following the State's submission to him of a supplemental answer to discovery on the day before trial. In pertinent part, that answer contained three significant items: (1) the name of Officer Thomas Krupowicz, who testified to a fingerprint comparison; (2) the fact that Almeida would testify to an oral statement of defendant; and (3) the name of Officer Erich Kleist, who testified to a police radio broadcast naming defendant. The State maintains, however, that the trial court ruled properly because its supplemental answer contained no information unknown to defendant, as he had previously been given a report containing the results of the fingerprint comparison as well as the name of Krupowicz as the secondary examiner, and defendant was aware of Almeida's incriminating statements nearly one year before trial. The State also argues that the testimony of Kleist was mainly corroborative and, in any event, defendant failed to show prejudice by the denial of the continuance.

The State's duty to comply with defendant's discovery requests is governed in general by Supreme Court Rule 412 (Ill. Rev. Stat. 1975, ch. 110A, par. 412), which requires it to make certain evidentiary disclosures in response to defendant's motion. The case law seems to indicate, without expressly holding, that where defendant is apprised of his own incriminating statements or other evidence through documents previously furnished by the State, it is proper for the State to use such evidence at trial even though it fails to inform defendant of that evidence through its answer to discovery until the eve of the trial. In People v. Sanders (1974), 56 Ill.2d 241, 306 N.E.2d 865, cert. denied (1974), 417 U.S. 972, 41 L.Ed.2d 1143, 94 S.Ct. 3178, defendant argued that it was error to allow the State to present evidence of the fact that when the police asked his name, he replied, "Leonard Henderson." Some 18 months before trial, defendant moved for the production of any statements he had made and the State replied that it was then unaware of any such statements, but defendant urged that his inculpatory response, "Leonard Henderson" was a statement that should have been initially disclosed by the State. The supreme court held, however, that because defendant had been aware of identical testimony at a suppression hearing one week before trial, he was not surprised or unfairly prejudiced by that testimony at trial.

The same result was reached in People v. Donald (1977), 56 Ill. App.3d 538, 371 N.E.2d 1101, where it was argued that the trial court erred in allowing testimony concerning two statements of defendant — one pertaining to information about his age, weight, and height given at the police station, which corroborated an eyewitness description of him, and the other relating to information from defendant that he did not know the victim, which conflicted with his answer on cross-examination that he denied telling the police he did not know the victim. Defendant objected to the use of those statements because the State failed to disclose them in response to his pretrial discovery motion. Noting substantial compliance with Rule 412 by the State, the court found no error since defendant had been supplied with reports containing the substance of the statements and thus had prior knowledge of them.

Similarly, in People v. Simms (1976), 38 Ill. App.3d 703, 348 N.E.2d 478, cert. denied (1977), 429 U.S. 1106, 51 L.Ed.2d 558, 97 S.Ct. 1138, defendant argued that the State wrongfully withheld evidence which was later admitted against him at trial. He had filed a discovery motion requesting production of his statements, pursuant to Rule 412, and although the State responded that it had no knowledge of any such statements, the police officer victim testified at trial that after he had been shot a second time, defendant said he was going to kill him. During argument on the motion, defense counsel admitted that defendant's previous counsel had received a copy of the statement before trial and that he and defendant were fully aware of the statement prior to its introduction into evidence. The court held that on those facts, defendant was not surprised or prejudiced.

In Sanders, Donald, and Simms, while the State's answers to discovery indicated an unawareness of any statements, each defendant had knowledge of the statements involved through documents or other information previously supplied by the State, and in each case the court held that the statements could be used by the State at trial. The record in the present case discloses that the technician who originally performed the fingerprint comparison in question was deceased at the time of trial, which necessitated testimony by the secondary examiner, Krupowicz. Defendant had previously been given the results of the fingerprint test, as well as Krupowicz's name, and did not object at trial, nor does he contend here that insufficiencies in the report impeded the preparation of his defense. Since defendant had the information in time to prepare for trial, the State's supplemental answer was largely superfluous as to the items in question.

• 2 By the same reasoning, defendant was not prejudiced by the information concerning Almeida's testimony of defendant's statements to him. Defendant had a copy of Almeida's report to the FBI at least six months before trial, and the only statements that the State intended to use against defendant were described in that document. Thus, defendant had long been aware of the fingerprint evidence and defendant's incriminating statements through other documents previously furnished by the State. The use at trial of the information contained in those documents came as no surprise to defendant and did not prejudice the preparation of his defense.

• 3 The testimony of Erich Kleist reveals that he received a dispatch on the morning of January 17 and sent out a broadcast of defendant's name and description, the offense he was alleged to have committed, and his last known whereabouts. Kleist also testified that the message was recorded and stamped at 4:11 a.m. on the morning of January 17. The purpose of Kleist's testimony was to corroborate the testimony of Corcoran and Mucia, and we fail to see how defendant was prejudiced by not being notified until shortly before trial that this testimony might be used. It is within the trial court's discretion to permit the State to call unlisted witnesses, and the trial court's rulings thereon will not be reversed on appeal unless the defendant can demonstrate surprise, unfair advantage, an inability to combat false ...


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