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People v. Amato

OPINION FILED NOVEMBER 16, 1984.

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

v.

FRANK AMATO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Will County; the Hon. Michael A. Orenic, Judge, presiding.

JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

The defendant, Frank Amato, was convicted following a jury trial of attempt (escape). He was sentenced to a term of imprisonment of 2 1/2 years. At the time of the attempted escape, the defendant was incarcerated at Stateville Correctional Center. The sentence imposed in the instant case is to run consecutively to the sentence he was serving at the time of the attempted escape.

The State presented evidence that the defendant and fellow inmates Randy Velleff and Pat Cecconi obtained chapel passes on the afternoon of December 31, 1982. An inmate count subsequently revealed that the three prisoners were missing. At 9:30 p.m., the defendant returned to his cellhouse dressed in clothing soiled with mud. Velleff and Cecconi succeeded in escaping from the prison.

That night, a muddy rope was found hanging from the wall near an unmanned guard tower on the north side of the prison. A culvert ran along the base of the prison's north wall. The area around the culvert was muddy.

The State presented the testimony of Randy Velleff. Velleff admitted that he had escaped from Stateville on the night of December 31. While testifying as to the details of the escape, Veleff stated that he did not remember seeing the defendant that night.

The State then requested a conference outside the presence of the jury. The trial court ruled that Velleff could be cross-examined regarding his testimony during a previous administrative hearing. When the trial resumed, Velleff persisted in his testimony that he did not remember whether he saw the defendant on the night of the escape. The State then questioned him as to whether he had testified regarding the escape during an administrative hearing. The witness responded that he did not remember. Over the defendant's objection, the State then read into the record the transcript of Velleff's testimony at the administrative hearing. During the administrative hearing, Velleff had testified that Amato participated in the escape effort but had not escaped because Amato was unable to climb the rope.

The defendant testified in his own behalf that he had become drunk while in the chapel and had apparently passed out. When he awoke, his clothing was covered with mud. This testimony was impeached with the defendant's prior inconsistent statements.

The jury was instructed that evidence of prior inconsistent testimony was to be used solely for the purpose of judging credibility. During its deliberations, the jury sent a note to the court requesting the transcript of Vellef's testimony in the administrative hearing. The trial court denied this request.

The defendant asserts on appeal that the trial court erred in allowing the State to cross-examine and impeach Velleff with his testimony in the administrative hearing. Specifically, the defendant argues that the State's impeachment was improper because Velleff's testimony did not damage the State's case and because the State intended to introduce the prior testimony as substantive evidence.

The impeachment of witnesses is governed by Supreme Court Rule 238(a). (87 Ill.2d R. 238(a).) At the time of these proceedings, Rule 238(a) provided:

"(a) The credibility of a witness may be attacked by any party, including the party calling him."

Thus, Rule 238 establishes that any party may attack the credibility of a witness.

However, the right to impeach a witness is not an unlimited one. In order to impeach a witness with prior inconsistent statements, the impeaching party must show that the "testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party's evidence, except to bring inadmissible hearsay to the attention of the jury." People v. Weaver (1982), 92 Ill.2d 545, 563, 442 N.E.2d 255, 262.

The defendant relies in support of his argument on the Illinois Supreme Court decision in Weaver. The defendant Weaver was charged with murdering her husband. To establish a motive, the State called Dennis Johnston, with whom Weaver had had an extramarital affair. When Johnston testified that he and Weaver were infatuated, the State was allowed to impeach him with his grand jury testimony that he and Weaver were in love. On appeal, the supreme court found that this impeachment constituted reversible error because his testimony had not ...


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