Appeal from the Circuit Court of Macoupin County; the Hon.
Joseph P. Koval, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant, Richard A. Jones, was charged by a nine-count information with attempt (murder) (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12-11), burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19-1), armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)), robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-1), aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(1)), armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), and theft over $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(e)(1)). Defendant was tried to a jury which found him guilty of all the offenses as alleged in the information.
He was then sentenced to 50-year terms for attempt (murder), home invasion, armed robbery, and armed violence. He was also sentenced to 10 years' imprisonment for aggravated battery, 12 years' imprisonment for burglary, and 8 years' imprisonment for theft. All terms were to be concurrent.
Defendant alleges six instances of error: (1) error in allowing the prosecution to introduce testimony regarding blood found on defendant's tee shirt; (2) error in allowing the chief investigating officer, a State's witness, to remain at counsel table with the prosecutor throughout the trial and then allowing him to be recalled as a witness; (3) improper comments by the prosecutor during closing argument; (4) improper cross-examination of the defendant by the prosecutor; (5) error in admitting statements made by the victim as an exception to the hearsay rule; and (6) error in sentencing.
Although defendant has raised numerous issues for review, a detailed recitation of the facts is unnecessary. The trial lasted more than a week with numerous witnesses testifying on both sides. Therefore, the factual background will merely be highlighted with additional facts provided as necessary to the disposition of each issue.
On February 27, 1981, Glen Mabus was alone in his rural Carlinville home. While working in the basement he heard someone enter the house and, thinking it was his wife, went upstairs. He observed a car in the driveway of his home which he described as a late model, light blue or bluish-green, Chevrolet. Mabus returned to his house where he encountered a black male, with a handgun, in his bedroom. The assailant took money from Mabus and then forced him to the basement of his house. Mabus was forced to sit in a chair and the assailant shot him in the eye. Mabus also testified that numerous items from his house were missing following this attack. Although Mabus was somewhat unsure of his assailant's identification, he did identify defendant as his attacker.
Defendant was arrested by the Macoupin County Sheriff's Department shortly after the incident. When he was arrested several of the items that had been taken from the Mabus home were found nearby. The car defendant was apparently driving at the time of his arrest was a green late model Chevrolet. On the day following defendant's arrest police found a .22-caliber Colt automatic pistol in Gleason's Pond, which was near the area where defendant was arrested. Police also found an empty .22-caliber shell casing in the basement of Mabus' residence. This shell casing was identified by a forensic scientist as having been fired from the handgun which was found in Gleason's Pond.
Several witnesses testified that they had seen a bluish-green or green late model Chevrolet at the Mabus residence at approximately the time of Mabus' attack. Other witnesses testified that this car belonged to Stanley Huddleston, a co-worker of defendant. Huddleston testified that he had loaned defendant his car that day.
Barbara Grizzle, the companion of the defendant on the day of the shooting, testified that defendant had displayed a gun to her earlier in the day while they were drinking together. She believed that the handgun found in Gleason's Pond was the same gun defendant had shown her.
Defendant's theory of the case was that he had not been anywhere near the Mabus residence at the time of the incident. Defendant produced numerous witnesses to substantiate this theory. He also contended he was the target of a police conspiracy.
Defendant contends that the testimony of Debra Fesser, a forensic scientist for the Department of Law Enforcement, was not relevant and therefore should not have been admitted. Fesser testified that she found blood on the front of a tank-top undershirt worn by defendant. However, she was unable to determine whether the blood was animal or human. Defense counsel objected to the testimony contending that the prosecution was first required to establish whether the blood was human or animal. The trial court overruled defendant's objection.
Defendant contends in this court that the relevance of the blood found on his clothing depended exclusively upon the unproved assumption that the bloodstains were made recently and that the blood was that of Glen Mabus. He contends that this error was exacerbated by a noticeable lack of corroborative evidence to establish that the blood was human and that it came from the victim. Finally he argues that although a number of State witnesses testified that they saw defendant during the day, none of them testified as to the existence of blood on his clothing.
It is axiomatic that the general test for the admissibility of evidence is its relevance. Evidence is admissible where it fairly tends to prove the particular offense charged. Any circumstances which tend to make the proposition at issue more or less probable may be put into evidence. Evidence is therefore relevant where the fact or circumstance offered tends to prove or disprove a disputed fact or to render the matter at issue more or less probable. (People v. Currie (1980), 84 Ill. App.3d 1056, 405 N.E.2d 1142.) However, where the relevance of evidence depends on unproved assumptions it is inadmissible. People v. Newbury (1972), 53 Ill.2d 228, 290 N.E.2d 592.
The determination of whether evidence is relevant is a matter for the sound discretion of the trial court. The trial court's decision will not be disturbed on review if there is no abuse of discretion to the prejudice of the defendant and where the record establishes a sufficient basis for the trial court's decision. (Currie.) Even where there is error, if the evidence of guilt is overwhelming, i.e., it is so convincing that the jury would have convicted even if the irrelevant evidence had been excluded, reversal is not required. Newbury.
Defendant contends that the evidence of blood on his tee shirt is irrelevant since it rests on the unproved assumptions that it was human blood and that the blood came from the victim. We do not agree that the relevance of the existence of blood on his undershirt rests on such unproved assumptions.
Defendant relies on Newbury, in which the disputed evidence was a photograph of the defendant which had been found in the victim's bedroom. The photograph had been torn. The prosecution argued that the torn photograph was relevant because the single fact that it was torn would allow the jury to infer that the victim tore the picture, that she had done so shortly before her death, and that her reason for so doing was a disagreement with the accused which, in turn, would suggest a motive for her killing. The supreme court rejected the photo. The court found the problem ...