APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
534 N.E.2d 554, 179 Ill. App. 3d 565, 128 Ill. Dec. 372 1989.IL.119
Appeal from the Circuit Court of Winnebago County; the Hon. John C. Layng, Judge, presiding.
JUSTICE LINDBERG delivered the opinion of the court. UNVERZAGT, P.J., and WOODWARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
Defendant, Michael Chambers, was charged with residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3(a)) in an information filed in the circuit court of Winnebago County. A jury found him guilty of that offense. He was subsequently sentenced to a 10-year term of imprisonment. Defendant has appealed this conviction of residential burglary.
Defendant raises four issues on appeal. Defendant contends that he should be granted a new trial because: (1) the trial court erred in admitting testimony that (a) defendant, "while . . . in custody awaiting trial, . . . threatened to harm the children of Sheila Stivers, the State's primary witness," and (b) the police obtained a warrant for defendant's arrest; (2) the trial court erred in allowing the State, on redirect examination of Stivers, to elicit testimony about (a) defendant's "alleged heroin use" and (b) "allegations that before [defendant] was arrested, he threatened to kill Stivers and her children"; (3) the trial court erred in admitting "hearsay evidence which improperly bolstered the credibility of . . . Sheila Stivers"; and (4) defendant was zprejudiced by the cumulative effect of improper remarks made by the prosecutor during the State's closing arguments.
Richard Bowers and his wife returned from their honeymoon on September 30, 1985. At about 6 p.m. on October 2, 1985, they left their Rockford home to go to a friend's house for dinner. All of the doors to the Bowers' house were locked. They returned at about 11:30 p.m. At that time, the basement door was open. Upstairs, they found that the brown-striped tan pillowcases had been removed from their king-size bed. There were many wedding gifts in the house, most from Weise's, where Bowers' wife had registered. These included silver trays and salt and pepper shakers. About $1,000 worth of the gifts were missing. They went downstairs, where they noticed that the back door had been pried open. Bowers had a collection of Mickey Mouse watches, dating from the mid-1930s to August of 1985, that he kept in the china cabinet. This collection, valued at $3,000 to $5,000, was gone.
Sheila Stivers contacted Detective Stephen Benny by telephone on October 29, 1985. On October 30, 1985, Stivers gave Benny two of the Mickey Mouse watches belonging to Bowers. That afternoon, Stivers gave Detectives Benny and Gray a statement implicating defendant and Monte McCoy in the October 2 burglary. Benny and Gray went to the county jail, where McCoy was being held, and found a Mickey Mouse watch and two Australian coins, which had been taken from Bowers' home, among the property the jail was holding for McCoy. At about 7:30 p.m. Benny and Gray went to a trailer in which McCoy and defendant had been living. Defendant, John Carr, and one or two other people were in the trailer. The detectives found two champagne buckets in the kitchen and several Mickey Mouse watches in the living room, all of which belonged to Bowers.
Benny and Gray, on November 1, 1985, received another of Bowers' Mickey Mouse watches from Dale Harwick. Harwick testified that he had paid defendant, who said the watch was "hot," $10 for it. A stolen television, not taken in the Bowers burglary, was found in Harwick's home. Harwick said that he bought it from McCoy, but that he had not known it was stolen. When he talked to the police, Harwick had been afraid he might be charged with burglary in regard to the stolen television.
Sheila Stivers testified that on October 3 at around 8:15 a.m. she went to the trailer in which defendant and McCoy lived. Defendant was in his bedroom, and McCoy and Tina James were in the living room. Stivers was sitting on the bed talking to defendant "about the stuff that they had stolen the night before." Defendant was telling her "the things they had taken out of the house that they had broken into." When she went into the living room she saw some watches, and defendant had told her they had gotten a silver tray and some brass buckets.
While Stivers and defendant were in the bedroom talking, McCoy yelled out, "Hey, Mike, you know whose house we hit last night?" Defendant responded, "No. Whose?" Defendant and Stivers went into the living room, where McCoy and James were reading a sales receipt from one of the watch cases that had the name Richard J. Bowers on it. Defendant said, "Oh, fuck, man, it don't matter anyways. That dude is rich."
Defendant opened the oven door and pulled out a silver tea service. There was a wooden wheel with jewelry on it. Defendant opened the cupboards and pulled out two brass champagne coolers, taken from Bowers' residence. In response to questions from defendant, Stivers told him that she did not know what they were and did not know what they were worth.
Later on October 3, Stivers, defendant, and McCoy went to Weise's Department Store. Stivers took two serving dishes and a pair of salt and pepper shakers inside. Stivers used a false name to return the items for a cash refund, which she gave to defendant. At a later date, defendant and Stivers went to the Broadway Book and Stamp Store with three watches to sell. The clerk there bought one of the watches. The other two watches were the ones Stivers later gave to Detective Benny.
Defense counsel cross-examined Stivers about her testimony's inclusion of information she had not told the police on October 30. She had not told the police about defendant's statement, "Oh, fuck, man, it don't matter anyways. That dude is rich." Nor had she told the police about defendant's asking her about the value of the champagne coolers. She also testified:
"Q. [Defense counsel]: Were you scared that you might get charged with something on October 30?
Q. You did not want to be deprived of your children certainly, did you?
A. No. I was scared of a lot of things when I was down here on October 30. Mike [defendant] had threatened my children's life. I was just plain scared. I wanted him as far away from me as I could get him. I was scared to death."
On redirect examination, the State questioned Stivers about her delay in telling the police what she knew about the Bowers burglary.
"Q. [Prosecutor]: You learned of the Bowers' burglary on the 3rd of October, correct?
Q. What is the reason you did not tell the police on the 3rd of October about the Bowers' burglary?
A. At the time I just didn't. I had no reason. I just didn't.
Q. When did you get a reason.
A. The 19th of October; Mike had come to my house. We had sold some stuff to some people. I was supposed to go back and get the money. That day . . . my kids' father had died, and Mike came back to my house.
October 19 my kids' father had died. That night I came home, and that day I was supposed to go back to pick up the money. Since he had died I couldn't go back and get the money, so Mike came over to my house. He was mad. He said -- called me a stupid bitch, told me if I fucked him over, he would fuck my kids up and fuck me up, too. He said he would burn my fucking house down with me and my kids in it if I didn't get him that money. The next day I went and I got the money, and I brought it back to him.
Q. After that did you approach the police?
Q. And your reason was to get back to him for what he said?
A. No. It was because I was scared. I went over to Mike's house the 29th of October. Him and John Carr was in the living room . . ..
Q. Exactly what was it they were doing which frightened you?
Q. What do you mean by that?
A. Taking a needle and shooting it into their veins."
Stivers knew it was heroin, although she had never used it. She was a recovering alcoholic and a recovering drug addict. As of May 5, 1986, she would have been dry for five months. She had last shot up cocaine on October 19, 1985, and before that had not shot any cocaine since September 28. Stivers testified that the facts of October 3 had become more clear than they had been to her on October 30 because not using drugs or alcohol had "defogged" her mind.
Stivers also during redirect examination (which occurred at the April 29, 1986, trial) testified:
Q. [Prosecutor]: . . . [Has] there been anything else . . . that has frightened you?
A. It was probably three months ago. I can't tell you the date. I was at an A.A. meeting, and a friend of mine, her name is Lisa Rixie, she came up to me and she --
MR. KING [Defense counsel]: (Interrupting) Judge, I object to any conversation between this witness and anybody else.
THE COURT: Objection sustained.
MR. GEMIGNANI [Prosecutor]: Judge, I want to say -- I will not say it in front of the jury.
THE COURT: You are offering it for what was said, not for the truth of what was said, but it was said.
MR. GEMIGNANI: That is correct.
THE COURT: Overruled; you may answer.
A. Lisa Rixie came up to me on a Sunday morning. She said, 'I have a message for you.' I said, 'Well, what is it?
MR. KING: Judge, I object.
A. I said, 'What is it?' She said, 'Do you know Mike Chambers?' I said, 'Yeah.' I said, 'How do you know him?' And Lisa goes, 'He's in jail with my brother, Jamie.' And I don't know Jamie Rixie. I have never met Jamie Rixie. But through Lisa, through A.A. meetings, I know he's in jail for murder. She goes, 'My brother called me and told me to tell you if you showed up at this trial, that something bad, really bad, was going to happen to your kids.'
THE COURT: You are offering that not for the truth of what was said . . . to Mrs. Stivers but that this ...