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People v. Nance





APPEAL from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding.


Armed robbery.

Jury trial.


Extended term — 45 years.

We affirm.

The facts are somewhat prolix.

At Nance's jury trial, John Fiorino testified that as he rode his motorcycle down a Decatur street on August 5, 1980, a man on a bicycle stopped him. Two men seated across the street and about 25 to 30 feet away then called Fiorino over to them. As he pulled into a vacant parking lot, they walked up behind him and one — whom Fiorino identified as defendant — put a handgun to the back of his head and demanded money and cocaine. Fiorino stated that he had neither. However, defendant removed Fiorino's wristwatch and either defendant or his companion took Fiorino's wallet.

In a photo identification, Fiorino was unable to state with certainty that defendant was his assailant. However, in a lineup two days after the armed robbery, he identified defendant as the gunman and Julius Pettis as the man on the bicycle.

Julius Pettis was originally charged with armed robbery in connection with this incident but was later given immunity in exchange for his testimony against defendant. Pettis testified that he came up to Fiorino and complimented him on his motorcycle, whereupon Fiorino asked whether Pettis knew anyone who wanted to buy some cocaine. After going to speak to his brother Dave and defendant, Pettis rode his bicycle back to Fiorino and told him to go across the street to where Dave and defendant were. Pettis testified that he saw defendant put a handgun near Fiorino's ear and saw defendant go through Fiorino's saddlebags after Fiorino had run away.

On cross-examination, Pettis admitted lying repeatedly to investigating officers concerning this incident. He acknowledged that, contrary to his trial testimony, he had told the officers that he had seen defendant and Fiorino together earlier in the evening, that he was some distance down the street when the armed robbery occurred, and that Dave Pettis was the gunman. He testified that he had lied "quite a lot" to a detective.

Defendant's attorney, Gary Geisler, then showed Pettis defendant's exhibit No. 2, which Pettis admitted having signed. However, he denied that the document had ever been read to him. Pettis was then shown defendant's exhibit No. 1, which he also admitted signing. However, Pettis stated that Geisler had read exhibit No. 1 to him before he signed it. (Exhibit No. 1 was simply a typewritten version of exhibit No. 2, which Geisler had written in longhand at the time he interviewed Pettis on November 5, 1980, in the Macon County jail.)

After Pettis became openly hostile to Geisler, proceedings were held outside the presence of the jury. The trial court learned that at the time Geisler interviewed Pettis in connection with this case, Pettis was incarcerated on charges arising out of the same incident and was represented by appointed counsel. Pettis was not granted immunity from prosecution until November 10, 1980, five days after the interview; he signed exhibit No. 1 on November 14. Exhibit No. 1, which Geisler himself prepared, consists of a series of questions and answers in which Pettis, inter alia, stated (1) that he could see only the tops of the heads of Fiorino's assailants and was not certain they were defendant and Dave Pettis, and (2) that he did not see either of them with a gun.

It was obviously Geisler's intention to impeach Pettis with exhibit No. 1 as a prior inconsistent statement. Ruling on the State's objection to the attempted impeachment, the trial court said:

"Number one, the question is improper as an attempted impeachment without any foundation whatsoever. To impeach a witness you have to lay foundation as to time and place, who was present, say the least. Number two I sustained it because if he should answer no, then it would be necessary for you to testify to complete the impeachment, and that, of course, I was trying to avoid because when you become a witness you no longer are competent as counsel. You can't have a dual role. You'd have to withdraw."

Before allowing Geisler to proceed with an offer of proof, the court said:

"But I'm not going to say that counsel for one co-defendant can interview another co-defendant in the county jail, prepare a document, have him sign it and then impeach him with it as to what he signed. That's the position the Court is taking, that is not correct procedure and nor is it ethical."

During the offer of proof, Pettis stated that he had read through a copy of exhibit No. 1 and that Geisler had also read it to him prior to his signing it. Pettis testified as follows ...

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