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People v. Foster





Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.


After a jury trial, Jerome Foster, defendant, was convicted of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1), and sentenced to 35 years in the Department of Corrections.

Defendant appeals his conviction and argues that it should be reversed because the trial court (1) abused its discretion in denying him the right to call a material witness, (2) erred in refusing to instruct the jury on the lesser-included offense of voluntary manslaughter, and (3) denied him his right to a fair trial.

We reverse and remand.

The record shows that on or about March 3, 1983, Raymond Collins, Eddie Tidsen, and Curtis Collins, the victim, were walking north on Lavergne Street, in Chicago, when a group of approximately 15 persons began chasing and taunting them. A scuffle ensued between Raymond Collins and Kenny Martin, one of the 15 individuals. Thereafter, as the crowd began to disperse, a shot was fired. The bullet struck Curtis in the chest; he died that same night.

Raymond Collins testified that he, his cousin Curtis, and Eddie Tidsen were together on the evening in question. They were walking north on Lavergne Street when approximately 15 people began to shout gang slogans at them. Immediately thereafter, the 15 individuals pursued and caught them. The witness stated that he recognized one of the gang members as Kenny Martin, whom he knew because they attended the same high school. Raymond further testified that he and Kenny engaged in a shoving match; Eddie intervened and the gang began to disperse. At that moment, three individuals stepped from the crowd and approached them; defendant Foster was one of those individuals. Foster then pulled a gun from his jacket and shot Curtis. The record shows that the murder weapon was not recovered.

On cross-examination, Raymond testified that it was after nightfall when the incident occurred. He stated that he is nearsighted and that he was not wearing glasses or contact lenses at the time of the shooting. He further testified that there might have been four people, instead of three people, who approached them just before his cousin was shot.

Eddie Tidsen's testimony was similar to that of Raymond's. Kenny Martin, called by the State, testified that he was part of the gang of 15 people who chased the victim and his companions. He stated that on the evening of the incident he had, earlier, smoked marijuana. He further testified that he witnessed the shooting and that he saw defendant pull a gun from his coat and shoot Curtis. On cross-examination, Kenny stated that he had been questioned after the shooting by Ms. Lyons, assistant Public Defender. He recalled having informed Ms. Lyons that during the shooting he was involved in an altercation with Raymond, but he did not recall telling her that he did not see defendant with a gun.

Christopher Hainey testified for the defense, stating that he worked as a student assistant for the Public Defender's office. He was present when Ms. Lyons interviewed Kenny Martin. Hainey testified that Kenny informed Ms. Lyons that he did not see defendant shoot the victim because, at the moment of the shooting, he was involved in a shoving match with Raymond.

• 1 Defendant first argues that the trial court's refusal of his request to call Gregory Felcus as a defense witness is reversible error. We agree.

The record reveals that on the day before the jury was selected, defendant's attorney asked the trial court's permission to amend her discovery answer to add the name of Gregory Felcus as a witness. The State objected and the trial court, taking into account the State's objection, reserved its decision until a later date. After the State had presented its case, defendant's attorney again requested that she be allowed to amend the discovery answer to include Gregory Felcus and to call him as a material witness. The trial court denied her request, as a sanction for her failure to name Felcus on the initial discovery answer. Defendant's counsel indicated that although she knew Felcus would be a potential witness when she initially filed her discovery answer, she unintentionally failed to list his name on the original discovery answer.

The trial court did grant defendant's request to submit an offer of proof of what Felcus would testify to, if called. The record indicates that he was one of the 15 individuals who chased Curtis, Raymond, and Eddie; that he had witnessed the shooting; that he observed the altercation between Raymond and Kenny; that someone in the back of the crowd fired a gun; that the gunshot struck Curtis; and that defendant did not have a pistol in his hand and did not shoot the victim.

The trial court, as a sanction for refusal to comply with discovery, can deny a party the right to call a witness. (Ill. Rev. Stat. 1983, ch. 110A, par. 415(g).) However, we have concluded that the trial court's use of this sanction is not unlimited. When, as here, the trial court's sanction is the exclusion of a defense witness, we have determined that it must be applied only in the most extreme situations. (People v. Rayford (1976), 43 Ill. App.3d 283, 286, 356 N.E.2d 1274, 1277, appeal denied (1977), 65 Ill.2d 579.) Furthermore, basic due process requires that a defendant be permitted to offer the testimony of witnesses in his defense. Any restrictions on this right must be extremely limited and shown absolutely necessary to accomplish the goal intended for the restriction. See United States ex rel. Enoch v. Lane (7th Cir. 1985), 768 F.2d 161.

The court in People v. Mahdi (1980), 89 Ill. App.3d 947, 957, 412 N.E.2d 669, 676-77, quoting People v. Rayford (1976), 43 Ill. App.3d 283, 286-87, ...

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