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People v. Merz





Appeal from the Circuit Court of McHenry County; the Hon. Leonard Brody and the Hon. Henry L. Cowlin, Judges, presiding.


While on probation for the offense of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401(e)), defendant, Henry M. Merz, was found guilty of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-3), theft in excess of $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)(1)), and criminal damage to property in excess of $300 (Ill. Rev. Stat. 1981, ch. 38, par. 21-1(a)), all arising out of an occurrence on January 1, 1983. The defendant was subsequently sentenced to a four-year term of imprisonment for the residential burglary offense only. The State also filed a petition for revocation of defendant's probation based upon the January 1, 1983, incident to which the defendant later stipulated that he had been convicted of the three offenses. His probation was revoked and he was sentenced to a 40-month term of imprisonment to be served consecutively with the previously imposed four-year imprisonment term for residential burglary.

These two cases have been consolidated on appeal and the following issues are raised by defendant: (1) did the trial court commit reversible error in the residential burglary trial (a) by limiting his opportunity to impeach an alleged accomplice witness, (b) by repeatedly making unnecessary comments disparaging to defense counsel before the jury, and (c) in admitting certain physical evidence based on hearsay and an inadequate foundation; and (2) was the 40-month consecutive term of imprisonment following revocation of his probation (a) grossly disparate to that of a co-defendant, and (b) improper because the trial court specifically found defendant was unlikely to commit another crime? Defendant also requests that if his conviction for residential burglary is reversed and remanded for a new trial, his probation revocation and sentence be reversed.

Defendant and Daniel T. Veenendaal were both charged, convicted, and placed on probation for the offense of unlawful delivery of a controlled substance occurring on June 29, 1982. Both defendant and Veenendaal were subsequently charged with residential burglary and related charges arising out of an entry into the home of Jack W. McGregor on January 1, 1983. Petitions to revoke their probation were also filed. The residential burglary offense proceeded to a jury trial against defendant solely. At trial the State's evidence essentially was that the McGregor home was broken into in the late evening of December 31, 1982, and early hours of January 1, 1983; that various valuable items were taken and damage caused; that Veenendaal, who had previously pleaded guilty and was sentenced to a four-year term of imprisonment, testified he and defendant committed the burglary and his nephew, David Curpier, a minor, assisted as a lookout; that David Curpier testified he acted as a lookout while his uncle and defendant went to the McGregor home, which was next to his, and removed various items; and that defendant gave several oral statements to sheriff's detective Chris Pandre in which he admitted being a lookout, admitted helping Veenendaal and Curpier, who he said committed the burglary, carry out various items from the McGregor home, and admitted he was going to get some of the money from the sale of these stolen items.

Defendant's father and mother testified that defendant was home with them all evening; they went to bed about 2:30 a.m. George Punzio, who dropped off his small daughter at the Merz home that evening, testified defendant was home at 7 p.m. when he arrived and at 2:15 a.m. when he again arrived to pick up his daughter. Defendant did not testify.

Following the defendant's conviction and four-year sentence of imprisonment for residential burglary, he stipulated to the guilty verdicts in connection with this burglary in the revocation of probation proceedings in his previous conviction for unlawful delivery of a controlled substance. His probation was revoked and he was sentenced to a 40-month term of imprisonment to be served consecutive to the residential burglary sentence. Veenendaal, who was a co-defendant in both the unlawful delivery of a controlled substance case and the residential burglary case, had entered a negotiated plea of guilty to residential burglary and an admission to the probation violation prior to defendant's trial. Pursuant to the plea agreement he was sentenced to a four-year term of imprisonment for residential burglary and his probation was revoked although no sentence was entered. He was further granted immunity from prosecution in relation to several other burglaries which he admitted committing.

Relating to the residential burglary case, defendant raises three arguments in which he contends he was deprived of a fair trial. His post-trial motion for a new trial failed to specifically raise any of these arguments. To preserve an issue for appeal, an objection must be raised at trial and in a post-trial motion. (People v. Jackson (1981), 84 Ill.2d 350, 358-59, 418 N.E.2d 739.) An exception to the waiver rule is where there has been "plain error," and the doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. (People v. Lucas (1981), 88 Ill.2d 245, 250-51, 430 N.E.2d 1091.) Pursuant to this principle we examine defendant's appellate contentions.

First, defendant maintains that the trial court prohibited him from cross-examining the State's witness, David Curpier, concerning juvenile arrests which had not resulted in court action. He argues that such evidence was admissible to show the witness was biased because of an expectation of leniency. The context in which this issue arose was on motion of the State prior to the beginning of trial. The prosecutor sought to preclude defendant from examining Curpier, who was 14 years of age, about prior arrests resulting in station adjustments without court action. It was acknowledged by the State that Curpier could be examined about two juvenile cases in which court adjudications and supervision had resulted. Subsequently, at trial, the two juvenile adjudications for which he was on supervision, which included the theft from the McGregor home, were extensively inquired into by the defendant, especially as it related to any possible "deal" with the State and any expectation of leniency. As to the other arrests and station adjustments, the record only reveals generally that there were several in 1981, and several in 1982 close to the date of the residential burglary on January 1, 1983, none of which resulted in court action or any supervision, just that the minor was "talked to." Apparently the trial court denied admission of this evidence because it was not the equivalent of a conviction of guilty.

We would agree with the defendant that the trial court appeared to bar these prior arrests and station adjustments of the witness on the basis that they did not result in the equivalent of adult convictions. Under the facts here, any impeachment of the witness' general credibility based on these past unadjudicated delinquencies would be improper. (See Ill. Rev. Stat. 1981, ch. 37, par. 702-9; People v. Harrell (1983), 112 Ill. App.3d 241, 445 N.E.2d 496.) However, defendant maintains that this evidence was admissible as impeachment to show motive, bias, or interest which is not directed at discrediting the witness by showing that he has been charged with a crime, but its purpose is to demonstrate the testimony is biased because of an expectation of leniency. (See People v. Foley (1982), 109 Ill. App.3d 1010, 441 N.E.2d 655; People v. Kellas (1979), 72 Ill. App.3d 445, 389 N.E.2d 1382.) While the trial court did not directly address this argument, we do so, and we may affirm the trial court when correct for any reason appearing in the record and even though its decision may be based on improper reasoning. People v. Sylvester (1980), 86 Ill. App.3d 186, 193, 407 N.E.2d 1002.

The confrontation clause of the sixth amendment of the United States Constitution (U.S. Const., amend. VI) guarantees the defendant the right to cross-examine a witness against him for, among other reasons, the purpose of showing the witness' bias, interest or motive to testify falsely. (Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105.) Although the scope of cross-examination is generally within the trial court's discretion (People v. Barr (1972), 51 Ill.2d 50, 51-52, 280 N.E.2d 708), the widest latitude should be afforded a defendant to show bias and to develop matters that would reasonably show the bias, motive or willingness of the State's witnesses to testify. (People v. Wilkerson (1981), 87 Ill.2d 151, 156, 429 N.E.2d 526.) This is especially true where the witness is an accomplice, and the fact that the witness is a minor does not operate to restrict the permissible scope of cross-examination necessary to develop any matters which tend to impeach his fairness or impartiality. (People v. Norwood (1973), 54 Ill.2d 253, 296 N.E.2d 852.) It has been held that this type of impeachment is not dependent on whether defense counsel can prove beforehand that promises of lenience had been made or any expectations of special favor existed in the witness' mind. People v. Foley (1982), 109 Ill. App.3d 1010, 1015, 441 N.E.2d 655.

The question before us here is whether evidence of juvenile arrests and station adjustments of a witness not resulting in supervision, occurring prior, although some were close in time, to the commission of the offense and trial of the defendant should have been admissible for the purpose of offering a motive for the witness to testify falsely. Defendant maintains such evidence barred him from showing that the witness' testimony was influenced by an expectation that his testimony would be helpful in keeping these prior arrests from requiring court action. In determining this question we must operate from the facts in the record before us.

• 1 The juvenile witness was neither on any supervision or probation resulting from these station adjustments (See Davis v. Alaska (1974), 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105), nor were any proceedings pending arising out of these arrests (see People v. Wilkerson (1981), 87 Ill.2d 151, 429 N.E.2d 526). The trial court did allow evidence of Curpier's admission in juvenile court proceedings to theft and dismissal of other allegations in the McGregor break-in, and his admission to another unrelated offense, for which he was under supervision at the time he testified. However, we believe that under the circumstances here where the juvenile witness was arrested for several offense and "talked to" as part of a station adjustment procedure without any formal proceedings or supervision resulting therefrom, all occurring prior to the date of defendant's alleged crime and trial, the evidence sought to be introduced to show bias, interest or motive was too remote, uncertain, and speculative to be admissible for impeachment purposes. Defendant must at least present direct evidence, rather than uncertain or remote evidence, that such bias exists. People v. Richard (1980), 90 Ill. App.3d 322, 330-31, 413 N.E.2d 5.

While defendant speculates in his appellate brief that the witness' testimony might have been influenced by an expectation that his testimony would be helpful in keeping these arrests from "requiring court action," there was no evidence offered below by defendant that the witness could be subject to juvenile proceedings after a station adjustment is made. The record does not disclose what procedures are used in McHenry County in station adjustments as they may pertain to any informal agreement with the prosecutor to forego permanently any commencement of proceedings under the Juvenile Court Act. Nor does the record indicate the nature of these arrests which could, for example, be for such typically juvenile-related violations as curfew or truancy. Under all the circumstances here, we find no error in the trial court's limitation of cross-examination.

• 2 The second issue raised in this case is whether certain of the trial court's comments, characterized by defendant as frequent and unnecessary, were disparaging toward his counsel so as to deprive defendant of a fair trial. In his appellate brief defendant sets out some 14 instances in the record which he asserts illustrate the trial court's demeaning attitude toward his trial counsel. Generally, the complained-of comments made in the presence of the jury relate to cautioning defendant's counsel not to interrupt either a witness, the prosecutor or the court, and advising counsel he was being repetitious, inquiring into improper evidence, or untimely in an objection. Two remarks of the court appear to be made in a humorous vein and are in response to ...

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