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People v. Dace





Appeal from the Circuit Court of Will County; the Hon. Angelo F. Pistilli, Judge, presiding.


The jury convicted the defendant of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-3), and the trial court sentenced him to four years' imprisonment. The defendant now appeals his conviction on several grounds.

According to the State's evidence, the defendant and two accomplices burglarized a home on March 26, 1982, in Joliet, Illinois. The State's chief witness, Sherri Brown, testified that she and the defendant broke the door to the home and stole rings, watches, coins, two shotguns, a small television, a stereo system and some other items. After the burglary, Brown and the defendant went to the defendant's backyard. Some of the items were in the backyard. At some point, Dwayne Carpenter joined the defendant and Brown. Brown told Carpenter to retrieve a television set that they left in the house, and Carpenter did as requested.

Carpenter testified that he approached the defendant first with the idea of breaking into a home, but the defendant did not respond positively or negatively to that idea. According to Carpenter, he was not involved in the initial breaking and entering, and he never saw the defendant enter the home. Carpenter also told the court that, when he first approached the defendant and Brown in the defendant's backyard, he noticed two shotguns resting in the grass. Carpenter admitted taking the television set at Brown's suggestion.

Another witness for the State, Ray Armstrong, testified that Carpenter, Brown and the defendant approached him while he was sitting on his porch. Armstrong was sitting with the defendant's uncle and another man. Brown and Carpenter initiated and dominated the conversation, asking him if he wanted to buy any of the goods. The defendant was silent for the most part, though he also asked Armstrong if he wanted to buy anything. At some point, Armstrong drove Carpenter, Brown and the defendant to the defendant's house. They did not stop there, however, when they saw a police officer in a squad car focusing a spotlight into the backyard. Armstrong dropped his passengers off at two different locations.

Three other witnesses — friends of the defendant — testified that Carpenter, Brown and the defendant were in their home at various times on the night of the burglary. These witnesses testified that they saw Brown with four to seven rings that evening, and that Brown admitted breaking into the house. In regard to the defendant, these witnesses neither saw him burglarize the house nor heard him admit to any wrongdoing. They did see the defendant wearing at least one and possibly two rings; they also testified, though, that they could not identify the rings he was wearing that evening and that the defendant usually wore one or two rings. The owner of the home also testified that he found the door broken, the house in disarray and several items missing. A police search of the defendant's home failed to produce any of the stolen items.

• 1 The first issue is whether the State proved the defendant guilty beyond a reasonable doubt. The defendant argues that the only evidence presented that he committed a burglary is the uncorroborated testimony of an admitted accomplice. Only Brown places the defendant at the residence and engaged in a breaking and entering. The defendant argues that Brown's testimony is weak and suspicious, because she was an accomplice, she testified for the State as a hostile witness, she pleaded guilty to a lesser charge of theft after negotiation with the State and she had a prior conviction for forgery. In addition, the defendant points to numerous inconsistencies and contradictions in the testimonies of all the State's witnesses. Carpenter's testimony was self-contradictory at some points, and he was not charged with any crime in spite of his admitted theft of the television set. During cross-examination, both Brown and Carpenter denied receiving any deal from the State in exchange for their testimony.

Uncorroborated accomplice testimony can be sufficient to sustain a conviction. (People v. Pittman (1973), 55 Ill.2d 39, 302 N.E.2d 7.) It is well settled that it is within the province of the jury to determine weight and credibility of testimony. In People v. Miller (1981), 94 Ill. App.3d 725, 419 N.E.2d 78, the court upheld a conviction in which the sole identification testimony came from an accomplice. As in the case at bar, this accomplice pleaded guilty to a lesser offense and — according to the accomplice — he had not been promised anything in exchange for testimony against the accused. It is equally well established that the State may use circumstantial evidence and inferences drawn from such evidence to sustain a burglary conviction. (People v. Johnson (1980), 82 Ill. App.3d 338, 404 N.E.2d 796; People v. Blakeney (1978), 59 Ill. App.3d 119, 375 N.E.2d 1309, cert. denied (1979), 440 U.S. 915, 59 L.Ed.2d 464, 99 S.Ct. 1231.) In this case, there is some circumstantial evidence which partially corroborates Brown's story.

• 2 Brown testified that she did not receive any promise or threat by the State in regard to her testimony against the defendant. She did, however, plead guilty to a lesser charge and receive a two year prison sentence. Even assuming, though, that she did receive a promise of leniency in exchange for her testimony, that alone would be insufficient to create a reasonable doubt of the defendant's guilt. (People v. Sangster (1981), 95 Ill. App.3d 357, 420 N.E.2d 181.) The testimony of the other witnesses, which placed the defendant in possession of some of the stolen items and attempting to sell them, substantiates part of Brown's testimony. On the record before us, the State's evidence is sufficient to sustain the defendant's conviction.

• 3 The second issue is whether the trial court erred when it refused the defendant's request for discovery of the mental health history of the State's primary witness, Sherri Brown. The defendant discovered that Brown had been involuntarily committed to the Tinley Park Mental Health Center in August 1980. The defendant sought additional discovery concerning Brown's mental history. Brown and the State objected to this discovery, arguing that this information is privileged. The State gave the court the case file from the commitment proceedings, which the court reviewed in camera. The court ruled the records were privileged and they were too old to be relevant. The court also barred the defendant from questioning Brown on her mental history. On appeal, the defendant argues he was denied due process of law and a fair trial. The State argues the records are privileged and the defendant has failed to demonstrate the relevance of the records or any prejudice to him.

The Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1981, ch. 91 1/2, par. 801 et seq.) establishes a psychotherapist-patient privilege:

"Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient's record or communication." (Ill. Rev. Stat. 1981, ch. 91 1/2, par. 810.)

None of the exceptions would be applicable to the case at bar. Supreme Court Rule 412(h) (87 Ill.2d R. 412(h)), provides for the discretionary discovery, by the defense, of other evidence not covered by other specific discovery rules:

"Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to defense counsel of relevant material and information not covered by this rule."

In spite of the statutory privilege, it is well established that the mental history of a witness is relevant to his credibility and a permissible area of impeachment. (People v. Lindsey (1979), 73 Ill. App.3d 436, 392 N.E.2d 278.) A thorough examination of a witness' credibility is especially important when that testimony will be determinative of the defendant's guilt or innocence. (Lindsey.) "Almost any emotional or mental defect may materially affect the accuracy of the testimony. A conservative list of such defects would have to include a psychosis, most neuroses, defects in the structure of the nervous system, mental deficiency, alcoholism, drug addiction, and psychopathic personality." People v. Phipps (1981), 98 Ill. App.3d 413, 416, 424 N.E.2d 727.

In Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105, the Supreme Court held that the sixth amendment right to confrontation entitled a defendant to question a witness concerning a juvenile adjudication, for the purposes of showing possible bias or prejudice, even though those records would be otherwise privileged. The court noted that the State's interest in ...

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