Appeal from the Circuit Court of Lake County; the Hon. John L.
Hughes, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendants, David King and Louis Roberson, were jointly tried and found guilty in a jury trial of attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)), aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(1)), conspiracy to commit robbery (Ill. Rev. Stat. 1983, ch. 38, par. 8-2(a)), and attempted armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)). Each defendant was sentenced to concurrent extended terms of 50 years' imprisonment for attempted murder and 14 years' imprisonment for conspiracy. Judgment was not entered on the guilty verdicts for aggravated battery and attempted armed robbery. The defendants' appeals were consolidated in this court.
Four issues are presented for our review: (1) that the trial court committed several evidentiary errors, (2) that the failure to disclose evidence favorable to defendants was a violation of due process and fundamental fairness, (3) that the imposition of the 50-year extended term of imprisonment for attempted murder was excessive, and (4) that the imposition of an extended term of imprisonment for conspiracy to commit robbery was improper.
The relevant trial testimony shows that on the afternoon of January 8, 1984, the victim, Nelson Lee, while accompanied by his wife Velma, was shot in the forehead and side by a gunman who entered his car while he was near a school. The Lees stated they were there to pick up a nephew, Timothy Walker. The Lees were unable to identify the gunman or another person who was with him and who repeatedly told the gunman to kill Lee. Both denied that Nelson Lee was there to sell Valium.
Jerry Handford, an accomplice, testifying pursuant to a plea agreement with the State which involved dismissal of a charge in connection with this case and reduction of an unrelated offense, stated that he, King, and Roberson planned to rob Lee of Valium which Handford had arranged to purchase from Lee through Timothy Walker. After Handford and Walker had approached the Lee vehicle, King approached and entered the vehicle, pulled a gun, and announced this was a stickup. Nelson Lee fought for the gun while Roberson was outside the car holding Walker. Handford heard three shots and saw the vehicle then speed off.
Timothy Walker testified that he arranged for Handford to purchase Valium from Nelson Lee. As Handford was about to purchase the Valium, the defendants, whom he knew, walked up to the car. King took out a gun, got into the car, and fought with Lee. Roberson was holding Walker and then told King to shoot Lee. Several shots were fired and, as the Lee vehicle was being driven off, King shot twice at the car.
Both defendants denied any involvement in the incident and presented alibi witnesses that they each were at different places at the time in question.
• 1 Three evidentiary trial errors are claimed which we review separately. First, defendant King contends that the court below erred when it refused to allow defendant, near the end of the State's case in chief, to amend his previous discovery answer adding defendant's brother, Will King, to his list of witnesses and ruled King could not be called as a witness. No offer of proof was made indicating the nature of his testimony, and trial counsel admitted that his failure originally to list King as a witness was due to inadvertence. This claim of error was not contained in defendant's written post-trial motion and is waived. (People v. Wright (1985), 111 Ill.2d 128, 148.) Despite defendant's agreement that his general assertion of a denial of due process in his post-trial motion was sufficient to preserve the issue (see People v. Rayford (1976), 43 Ill. App.3d 283, 285-86, 356 N.E.2d 1274), specific references to a claimed trial error in a post-trial motion are required. (See People v. Jackson (1981), 84 Ill.2d 350, 359, 418 N.E.2d 739; People v. Winston (1982), 106 Ill. App.3d 673, 685-86, 435 N.E.2d 1327.) We will, however, review the alleged error pursuant to Supreme Court Rule 615(a) (87 Ill.2d R. 615(a)).
• 2 Failure of a defendant to comply with a discovery order subjects him to possible sanctions, including the exclusion of an undisclosed witness. (87 Ill.2d Rules 415(g), (i).) Whether or not to impose a sanction is within the trial court's discretion and will not be disturbed on review absent a showing by defendant of prejudice or surprise. (People v. McKinney (1983), 117 Ill. App.3d 591, 596, 453 N.E.2d 926.) Here, no showing was offered below as to the nature of the proposed testimony of the witness which might arguably support a claim of prejudice. While defendant now contends in his brief that Will King would have testified in corroboration of his brother's alibi, this argument is speculative and, even assuming it is accurate, would only have resulted in cumulative evidence of an alibi. (See People v. Bartall (1983), 98 Ill.2d 294, 318-20, 456 N.E.2d 59; People v. Brown (1980), 89 Ill. App.3d 852, 858-59, 412 N.E.2d 580.) On this record, there is no reason to invoke the doctrine of plain error encompassed by Rule 615(a) (87 Ill.2d R. 615(a)).
The second assertion of evidentiary trial error pertains to the defendant Roberson. He argues that the trial court erred by refusing to allow him to present two witnesses, one of them the co-defendant King's brother, who would have testified that they purchased Valium and marijuana on numerous occasions in the past two or three years from the victim, Nelson Lee, who was a "drug dealer." He further maintains that the purpose of this testimony was to reveal Lee's status as a drug dealer which would show Lee's, Walker's, and Handford's motive to testify falsely to this occurrence.
• 3 The test of the admissibility of evidence is whether it fairly tends to prove the offense charged; and whether what is offered as evidence will be admitted or excluded depends upon whether it tends to make the question of guilt more or less probable. (People v. Ward (1984), 101 Ill.2d 443, 455, 463 N.E.2d 696.) The admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse of that discretion. (101 Ill.2d 443, 456, 463 N.E.2d 696.) In the instant case, the proffered testimony pertained to drug sales by Nelson Lee to two persons other than the defendant occurring over a two- or three-year period. This evidence was both too remote in time to have any probative value (see People v. Reese (1984), 121 Ill. App.3d 977, 988, 460 N.E.2d 446) and without any connection to the defendant Roberson which might show bias or a motive to testify falsely. In the context of the alibi defense raised, the lack of evidence of any prior association between Lee and Roberson and the inability of Lee to identify Roberson, the testimony of Lee's prior drug sales to other persons did not tend to make the question of Roberson's guilt more or less probable and was therefore properly excluded as not relevant. In addition, there is other evidence in the record to establish that on this occasion Lee was at the school to sell Valium which Roberson could assert as an arguable inference of a motive to give false testimony. We find no abuse of discretion.
• 4 The third contention of evidentiary error is raised by both defendants and involves the prosecutor's two questions on cross-examination of LaVergne Kneeland, an alibi witness for Roberson, concerning her romantic relationship with Roberson, which she denied. She later admitted that she had visited Roberson on seven occasions while he was in jail. While the State improperly failed to substantiate any romantic involvement (see People v. Giangrande (1981), 101 Ill. App.3d 397, 404-05, 428 N.E.2d 503), we view the error to be harmless. On this record, a friendship between Roberson and the witness was shown supporting an inference of bias to her testimony. Any error in the further unsupported suggestion of a romantic relationship ...