APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
516 N.E.2d 623, 163 Ill. App. 3d 316, 114 Ill. Dec. 468
Appeal from the Circuit Court of Cook County; the Hon. Kenneth L. Gillis, Judge, presiding. 1987.IL.1653
JUSTICE MURRAY delivered the opinion of the court. LORENZ, J., concurs. JUSTICE PINCHAM, Dissenting.*
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
This is an appeal by defendant, Alonzo Waldroud, *fn1 from a January 20, 1984, conviction for armed robbery and sentence of 10 years' imprisonment. The sole issue presented to the court on appeal is the propriety of a trial court's denial of the defendant's motion for a new trial based on newly discovered evidence. For the following reasons we affirm.
The undisputed facts are that defendant Waldroud and P.C., a 15-year-old minor, were indicted on a four-count indictment charging the offenses of armed robbery and armed violence on July 21, 1983. The victims of the offense were Curtis and Sandra Courts.
Waldroud waived a jury trial and was found guilty by the trial Judge of the crime of armed robbery. The principal evidence upon which the trial court found the defendant guilty of armed robbery was the testimony of the victims, Sandra Courts and her husband, Curtis Courts. They testified that they went into a multiple-apartment building at 6810 South Dorchester in Chicago, Illinois, to pick up Sandra Courts' sister. They had never been in the apartment before. Not finding the sister's apartment, as they began to leave the building they were approached on a stairwell landing in the building by two men. One pulled a gun and announced a "stick up." The time of the occurrence was 5:20 in the afternoon of July 21, 1983.
Sandra Courts testified as to the lighting conditions at the time, as follows:
"Q. Now, on this landing when they were taking the property from you, are there any lights?
Q. Approximately how many lights, if you recall?
A. It was well lit up. It was like the light right above us.
Q. Was it lighter or darker than the light in this courtroom?
A. It was lighter. It was well lit up."
Curtis Courts testified as to the lighting on the date of the occurrence.
"Q. Now, how was the lighting on that landing on the second floor when these two gentlemen approached you?
A. It was light, well lit."
The amount of $92 or $95 was taken from Curtis by the robbers and they took a watch from Sandra. Both Sandra and Curtis identified the defendant at the trial as one of the men who robbed them.
Sometime after the robbery the Courtses observed the two men that robbed them crossing the street. Sandra Courts called the police. Sandra pointed to two men on a porch with others directly across the street from the building within which they were robbed. She testified:
"As the police car was pulling up I told the officer there was the two on the porch, that I seen the two on the porch that had robbed us."
When the police officer jumped out of the car, the two men and others on the porch entered the building. When the police officer entered the building and then came outside, he had one of the robbers, according to the Courtses' testimony. He then returned into the building and came out with the defendant, according to Susan Courts' testimony.
Officer Robert Taylor testified that Officer Weatherby, while searching a closet in the building, observed and apprehended defendant. Officer Taylor testified that "he [defendant] was placed under arrest after being positively identified by both victims as being the offender." Officer Weatherby identified defendant as being "in the closet underneath the clothing."
Officer Taylor also testified he found $31 and a Timex wristwatch, proceeds of the robbery, under one of the robbers (not defendant) when he arrested him while lying in the bed in the same apartment where defendant was apprehended in the closet.
After trial, defendant, in an amended motion for a new trial, filed the affidavit of K.C., the mother of Waldroud's codefendant. In her affidavit, after attesting to knowledge of the apartment building where defendant was robbed, she stated that on July 14, 1983, there were no lights on the stairwell where the robbery occurred and to her knowledge no repairs had been made to improve the lighting conditions from July 14, 1982, to July 21, 1983, the date of the robbery.
Also, an affidavit was filed by Kevin Patterson, an investigator employed by the defendant's counsel after trial. He stated that on January 5, 6, and 8, 1984, (six months after the event), he visited the situs of the crime and found no lights. He further stated that nothing could be seen clearly on the first three floors of the building. He suggested the names of three witnesses who he stated would testify to the lighting conditions and to the Courtses' reputation as drug users or dealers. In an apparent attempt to explain his failure to discover the evidence concerning the lighting conditions, defendant's trial counsel stated that he visited the scene sometime after his appointment and that between the date of the crime and September 23, 1983, unbeknown to him, the building had undergone substantial renovation.
It is a settled rule of law that applications for a new trial on the grounds of newly discovered evidence are not looked upon with favor by the courts. In order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice as a last resort, to escape the consequence of an adverse verdict, such application should always be subject to the closest scrutiny by the court. The burden is upon the applicant to rebut the presumption that the verdict is correct and to show no lack of diligence. The matter is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in case of manifest abuse. People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.
To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the outcome of the trial on retrial; it must be material to the issue and not cumulative; and it must be discovered since the trial and could not have been discoverable prior to trial by the exercise of reasonable diligence. (People v. Baker (1959), 16 Ill. 2d 364, 158 N.E.2d 1.) Generally, evidence which serves only to impeach is not a justification for the granting of a new trial. (People v. Johnson (1978), 60 Ill. App. 3d 183, 376 N.E.2d 381.) Recently this court held that newly discovered evidence sufficient to warrant a new trial must be material, so conclusive that it will change the result, and incapable of being discovered prior to trial by the exercise of due diligence. People v. Houston (1986), 151 Ill. App. 3d 102, 502 N.E.2d 1111.
Based on these comparatively rigid standards, this court cannot conclude that the trial Judge abused his discretion in denying Waldroud a new trial based on the Courtses' identification of him as one of the persons who robbed them.
First, the evidence relating to the lighting conditions of the locus of the crime could have been discovered before trial by the same type of investigation made by defendant's counsel after trial. The fact that defendant was apparently incarcerated from the day of his arrest on July 21, 1983, did not preclude an investigation by the attorney or his investigator of the scene prior to or during trial. The defendant was apprehended on July 12, 1983; his trial did not commence until November 21, 1983.
Further, the affidavit of Patterson as to his interview of Berdean Wingo and Jeanette Jackson as to the lighting in July 1983 and to the knowledge of Curtis and Sandra's selling drugs is defective. A motion for a new trial must be accompanied by defendant's affidavit showing his lack of prior knowledge of this evidence and his diligence in obtaining it. In addition, defendant must attach additional affidavits of the witnesses who would testify concerning the new evidence or retrial unless the lack of such affidavits is sufficiently explained. (People v. Gray (1981), 96 Ill. App. 3d 757, 422 N.E.2d 45.) Wingo and Jackson did not submit affidavits nor is the lack of their affidavits explained.
The affidavit of Waldroud's codefendant's mother, at best, impeaches the Courtses' testimony concerning the lighting at the scene by implication. Her last visit to the apartment, according to her affidavit, was July 14, 1983, a week before the occurrence. The affidavit does not directly impeach the Courtses' positive identification of defendant made on the date of the crime or their in-court identification.
The material submitted by defendant does not indicate or suggest that the result of the new evidence would change the outcome of the trial. A revised opinion of the State's expert which supported defendant's theory that a gun accidentally discharged was held not of a nature that would change the trial's outcome and did not entitle a defendant to a new trial. (People v. Lovitz (1984), 127 Ill. App. 3d 390, 468 N.E.2d 1010.) The confession by defendant's cousin that he, not defendant, committed the armed robbery of which defendant was convicted was held not to be of sufficient conclusive character as to probably change the outcome of defendant's trial. (People v. Johnson (1986), 148 Ill. App. 3d 163, 504 N.E.2d 502.) The same is true here. The newly discovered evidence as to the lighting at the scene one week before the crime was not such as to probably change the outcome of defendant's trial.
Now comes CARSWELL, being first and duly sworn upon oath, deposes and states that:
1. I CARSWELL am a resident of the City of Chicago, State of Illinois and have been since 1932.
*fn2. That from March 7, 1982 to March 8, 1983, Affiant lived in the apartment complex then owned and maintained by Great American Realtors located at 6800 S. Dorchester.
3. That Affiant's address, while living at said complex, was 6806 S. Dorchester.
4. That after Affiant moved out of her apartment at 6806 S. Dorchester, she frequently visited relatives and/or associates still living in said apartment complex, her last visit prior to July 21, 1983 being July 14, 1983.
5. The throughout the course of Affiant's stay at said apartment complex, the hallway and landing lights were always out, and because of the continued reoccurrence of broken lights and stolen fuses, it was common for the lights in the hallways inside said apartment complex to remain out for months.
6. On Affiant's visit to said apartment complex on July 14, 1983, the entire complex from 6800 to 6820 Dorchester had been condemned, was scheduled for renovation and all tenants had been instructed to move.
7. That on July 14, 1983, Affiant visited a friend in 6810 South Dorchester and at that time, there was [ sic ] no lights on stairwell landing one and two, in that section of the building or the landing near the entrance door to that building.
8. That to my knowledge, no repairs had been made to improve the lighting conditions in the building hallways from July 14, 1983 to July 21, 1983.
Further Affiant sayeth not.
Catherine Carswell (signature)
KATHERINE [ sic ] CARSWELL
SUBSCRIBED AND SWORN to before me this 10th day of January, 1984."
Kevin Patterson, being duly sworn under oath, deposes and states:
1. That he is a resident of the State of Illinois and has been since January 16, 1953.
2. That he was retained by Keith Davis, Attorney for Alonzo Waldroud, to investigate newly found evidence relating to an alleged armed robbery which took place on July 21, 1983, in which Alonzo Waldroud was arrested.
3. That during the course of Affiant's investigation, he had visited the apartment complex where the alleged robbery occurred and had occasion to talk to people who lived and/or frequented the apartment complex which extends from 6800 to 6820 South Dorchester.
4. That on January 5th, 6th and 8th, 1984, Affiant visited the apartment complex at 6810 South Dorchester where an armed robbery allegedly occurred which involved Alonzo Waldroud in July, 1983.
5. That on January 5th, 1984, there were lights on all four landings and on January 6th and 8th, 1984, there were lights on two landings, and the windows were old and dark colored and did not allow light through.
6. That Affiant turned out the lights on three floors (1st, 2nd and 3d floors) and nothing could be seen clearly without artificial lighting.
7. That on January 9, 1984, Affiant spoke with Alonzo Waldroud at the Cook County Jail and Affiant was told by Defendant, Waldroud, that he knew nothing about the lighting conditions of the building at 6810 South Dorchester on July 31, 1983, but that a friend, Ms. Suzette Stewart, had recently mentioned the issue to him.
8. That on January 9, 1984, at approximately 8:00 p.m. Affiant spoke to Ms. Suzette Stewart at her home. Ms. Stewart assisted in the investigation.
10. That on January 10, 1984, Affiant interviewed Ms. [Catherine] Carswell at her home in Argo, Illinois. Ms. Carswell informed Affiant that she had visited a friend on or about July 14, 1983, who lived at 6810 South Dorchester and that at that time, the building had been condemned and all tenants had been instructed to move. Affiant was also told that on that date no lights were in the stairwell at 6810 South Dorchester then and it was ...