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People v. Harrell

OPINION FILED FEBRUARY 3, 1983.

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

v.

RICHARD HARRELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Adams County; the Hon. Robert L. Welch, Judge, presiding.

JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT:

Defendant was charged by information on September 24, 1981, with four counts of murder. After jury trial, a verdict was returned against the defendant on all four counts on February 5, 1982. On March 31, 1982, defendant was sentenced to a term of imprisonment of natural life on the third count for causing the victim's death while committing armed robbery. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(3).) The judgments on the other three alternate counts were vacated.

Defendant contends that the trial court erred by barring impeachment of the prosecution's principal witness with a prior juvenile conviction for burglary and by depriving defendant of a fair trial when it excluded a defense witness. We affirm.

The issues presented here require only a sketch of the evidence presented at trial. Defendant and his wife's brother, Drew Cunningham, were in a tavern known as Nashville City located in Quincy, Illinois, in the early morning of September 19, 1981. At approximately 2 a.m., they left the tavern in the company of the victim, Earl Bowen. Bowen was later found murdered on the outskirts of Quincy. Conflicting testimony was given concerning the details of the departure from the tavern and the events of the following 45 minutes. In short, defendant testified that he left the tavern with Bowen, but outside they split up. Defendant spent the next 45 minutes wandering around downtown Quincy and then he headed back to where he had parked his truck. He did not know where Cunningham was until he saw him drive up and park his (defendant's) truck.

According to Cunningham's version of the events, defendant, the victim, and Cunningham left the tavern together in defendant's truck. Defendant drove the truck to the outskirts of town where the victim was beaten with a metal bar by Cunningham, shot by defendant, and then robbed. The victim was left and the two of them returned to town.

Other than the fact that Bowen and defendant exited the tavern together, and one witness saw defendant and Cunningham drive up and park in defendant's truck approximately 45 minutes later, the only testimony connecting defendant to the murder was that given by Cunningham. Cunningham was allowed to plead guilty to a single count of armed robbery and his sentencing had not yet taken place at the time of defendant's trial. The trial court granted the prosecution's motion in limine barring the introduction for impeachment purposes of Cunningham's juvenile record. Defendant claims that his rights to confront a witness against him was thus unconstitutionally impaired.

• 1 A defendant's right to confront the witnesses against him is fundamental to a fair trial. (Pointer v. Texas (1965), 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065.) The right to cross-examine is an essential part of the right to confront. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038.) Furthermore, Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, and People v. Norwood (1973), 54 Ill.2d 253, 296 N.E.2d 852, indicate that a juvenile witness may be impeached by examination regarding pending juvenile matters or matters for which the witness is under the continuing supervision of a juvenile court. The rationale is that a defendant has the right to show possible bias on the part of a witness against him. That is, he may show that the juvenile witness is predisposed to testify favorably for the State in order to receive lenient treatment on the juvenile matters.

• 2 The juvenile adjudication that was sought to be introduced here was apparently for a burglary in California which occurred approximately 1 1/2 years prior to the murder. There is nothing in the record to indicate that Cunningham expected to receive any leniency from California authorities because of his cooperation with the prosecution here, and in fact, the prosecutor stated that he had had no conversation with any California authorities on that possibility. We recently held in People v. Lindgren (1982), 111 Ill. App.3d 112, that Davis and Norwood have no application where, as here, there has been no showing that the witness might receive favorable treatment in a juvenile proceeding because of his testimony. In contrast to impeachment by showing potential bias, there is no constitutional right to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications. (See Davis v. Alaska (1974), 415 U.S. 308, 321, 39 L.Ed.2d 347, 356, 94 S.Ct. 1105, 1112 (Stewart, J., concurring); People v. Holsey (1975), 30 Ill. App.3d 716, 332 N.E.2d 699.) We find the Lindgren holding controlling.

• 3 As a further basis for our holding we note that the court in People v. Baugh (1981), 96 Ill. App.3d 946, 951, 422 N.E.2d 166, 171, stated:

"The issue under the confrontation clause is whether the jury has been made aware of adequate factors to determine whether a witness is worthy of belief, not whether any particular limitation has been placed upon defendant's ability to cross-examine a witness or whether the jury has knowledge of any specific fact. [Citations.] Thus, if it appears from the entire record that the jury has been made aware of adequate factors concerning relevant areas of impeachment of a witness, no constitutional question arises merely because defendant has been prohibited, on cross-examination, from pursuing other areas of inquiry. [Citation.]"

The jury here was made aware of Cunningham's part in the crime, the fact that he was only charged with armed robbery in exchange for his testimony, and that he would not be sentenced until after his testimony in defendant's trial. Defendant's constitutional right to confront Cunningham was not impaired.

• 4 Finally, the determination of whether a juvenile adjudication will be allowed in evidence to impeach a witness is left to the sound discretion of the trial judge. The standard to be used is from proposed Federal Rule of Evidence 609(d) (51 Fed. R. Dec. 391), which allows such impeaching evidence if "conviction of the offense would be admissible to attack the credibility of an adult and the judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence." (See People v. Puente (1981), 98 Ill. App.3d 936, 424 N.E.2d 775.) In making its ruling, the trial court stated that the facts here presented a close question. We think it would be a better practice to allow impeachment by juvenile adjudications when, as here, a witness is critical to the State's case. (See Holsey.) However, absent the impairment of any of defendant's constitutional rights and given these facts, we cannot say that the trial court abused its discretion.

Defendant next contends that he was deprived of a fair trial because the court refused to allow him to call a "surprise" witness. At 2:50 p.m. on February 3, eight days after trial had begun and immediately before the defense rested, defense counsel notified the court of the discovery of a new witness, Virginia Murphy. The court was told that defendant had always maintained that the witness existed, but her identity was unknown because of a "misapprehension" on the part of defense counsel. The "misapprehension" was never explained. The court was further told that the identity of the missing witness was discovered on February 1; that on February 2 a detective agency was hired to locate her in Florida; and that on the morning of February 3 she was located and talked by phone with defendant's attorneys.

They related that in the conversation, Murphy said that she had worked at Nashville City the morning of the murder and left work with an unknown male companion between 2:30 and 2:45 a.m. As they were crossing a street, a pickup truck with lights mounted on the hood turned the corner and almost struck them. Her companion made some kind of comment about the driver, as did a man who was standing on the other corner. She gave a description of that unidentified man, which description was consistent ...


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