Appeal from the Circuit Court of Cook County; the Hon.
Cornelius J. Houtsma, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant Jeffery Molstad was one of nine defendants indicted for attempted murder, two counts of aggravated battery, armed violence and criminal damage to property. Prior to trial, the armed violence count was nolle prossed by the State. At the close of the State's case, the circuit court entered a finding in favor of co-defendant Edward Kroll as to all counts. Following trial, co-defendants Edward Rzab and Rodney Phillips were acquitted, and Molstad and four co-defendants, David Kroll, Mark Schmidt, David Kent and Jose Flores, were found guilty of criminal damage to property and aggravated battery. Each was given concurrent sentences of 30 months' felony probation and ordered to make restitution of $500.
The principal issues raised on appeal include whether: the circuit court improperly denied Molstad's post-trial motion, supported by affidavits, to introduce the exculpatory testimony of six co-defendants; Molstad was proved guilty beyond a reasonable doubt; and Molstad was properly ordered to pay $500 restitution on the criminal damage to property conviction.
For the reasons given below, we remand the cause for an evidentiary hearing on Molstad's motions.
Only the facts relevant to disposition of this appeal need be recited. At approximately 11:45 p.m. on April 2, 1981, the victim, Tom Bonner, left Wendy Albritton's house in his father's car accompanied by Wendy and Sandy Bonner. In the vicinity of 145th and Kilpatrick, an orange pickup truck pulled in front of their car, blocking their progress. A blue station wagon joined the truck in front of their car and a brown pickup truck pulled in from behind. Approximately eight to 10 persons, some armed with bats and pipes, jumped out of their vehicles and attacked their car.
Albritton testified that she and Sandy got out of the car as the windows were being hit. She recognized David Kent, Mike Guerra, *fn1 David Kroll and Mike Schmidt as some of the attackers. Eddie Rzab was the driver of the brown pickup truck. Geary opened the front door and hit the victim in the head with a bat. Jose Flores hit the victim. She saw an individual, known to her as Jethro (identified later as Molstad), hitting the back window of the car with "an object." She had seen Molstad on about 10 occasions prior to the incident.
The victim testified he was first hit in the head while seated in the car. He got out of the car and ran until he fell into a ditch. He was hit repeatedly with a pipe and a bat. It was stipulated that the victim was hospitalized for six days and sustained multiple bruises of various parts of his body, traumatic lacerations of the skull, possible brain contusion and fracture of the right phalange. It was also stipulated that the victim told hospital personnel that he had been admitted to the hospital in the previous month with head and finger injuries.
Molstad testified that on April 2, 1981, he returned to his home between 10:10 and 10:30 p.m., sat in the living room for 30 to 45 minutes, and then went upstairs to bed. He did not leave his home or come downstairs for the rest of the night. His testimony was corroborated by that of his father and mother. His mother retired at the same time as Molstad. Patrick Smith testified that he last saw Molstad at about 10:15 p.m. in front of his house.
Molstad's counsel filed a post-trial motion to reopen his case-in-chief or in the alternative for a new trial, in support of which he presented affidavits of four convicted co-defendants, David Kent, David Kroll, Jose Flores, Mike Schmidt and one acquitted co-defendant, Edward Kroll. None of the convicted affiants had been sentenced as of the time the affidavits were submitted. Molstad's counsel subpoenaed a sixth co-defendant, Edward Rzab, who had been found not guilty. Counsel for Rzab moved to quash the subpoena and stated that his client did not want to testify on this matter. The motion was allowed. The circuit court denied Molstad's post-trial motions without an evidentiary hearing.
On appeal Molstad contends that the circuit court improperly denied his motions for a new trial or to reopen his case-in-chief. He admits that he was aware of the exculpatory information before trial, but contends that this testimony was not legally available to him during the trial. For this reason, he argues that his motion is similar to a motion for a new trial based upon newly discovered evidence. The State counters that Molstad meets none of the requirements which would authorize a new trial on grounds of newly discovered evidence.
Applications for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts> and must be closely scrutinized. (People v. Reese (1973), 54 Ill.2d 51, 59, 294 N.E.2d 288; People v. Nolden (1980), 91 Ill. App.3d 532, 542, 414 N.E.2d 1124.) The matter is largely discretionary with the circuit court, and its determination will not be disturbed except in the case of a manifest abuse. (People v. Holtzman (1953), 1 Ill.2d 562, 569, 116 N.E.2d 338.) To warrant a new trial, the new evidence must be of such a conclusive nature that it will probably change the outcome on retrial. (People v. Thompson (1980), 91 Ill. App.3d 1111, 1117, 415 N.E.2d 648.) It must also be non-cumulative, discovered after trial, and be of such a character that it could not have been discovered before trial by the exercise of due diligence. People v. Miller (1980), 79 Ill.2d 454, 464, 404 N.E.2d 199.
Applying these principles and general precepts of due process to the instant controversy, it is clear that the proposed evidence could have demonstrated Molstad's absence from the scene of the crime, which was material to the issue of his guilt or innocence, and thereby would have been of a conclusive nature.
Molstad argues that the evidence set forth in the affidavits was not available to him until after the trial; however, the record shows that he knew of the evidence before trial and decided as a matter of strategy to do nothing. Molstad's counsel had a duty to move for a severance at that time, which he failed to do. (See People v. Lee (1981), 87 Ill.2d 182, 186, 429 N.E.2d 461.) Nevertheless, co-defendants/affiants asserted that they did not testify on Molstad's behalf because such evidence would have damaged their own defensive interests. Additionally, there was no assurance that the motions would have been granted or that co-defendants would have relinquished their fifth amendment rights. (Wharton's Criminal Procedure sec. 403 (12th ed. 1975).) To be noted further is the fact that the affidavits were presented prior to sentencing, which lends credence to the argument that Molstad was not "* * * attempting to practice fraud or imposition upon the court in order to escape the consequences of an adverse verdict." People v. LeMorte (1919), 289 Ill. 11, 23, 124 N.E. 301, cited in People v. Holtzman.
The circuit court characterized the evidence contained within the affidavits as cumulative of alibi evidence; in doing so, however, the court overlooked the difference between proving that a defendant was at some other place than where the crime was committed and proving that he was not at the scene at that time. This difference was explicated by the supreme court in People v. Fritz (1981), 84 Ill.2d 72, 417 N.E.2d 612. In Fritz, the supreme court reversed a conviction and remanded the cause for a new trial, in part because the ...