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02/28/89 the People of the State of v. Randy Powell

February 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RANDY POWELL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

535 N.E.2d 1008, 180 Ill. App. 3d 315, 129 Ill. Dec. 243 1989.IL.252

Appeal from the Circuit Court of Cook County; the Hon. Lawrence I. Genesen, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Defendant was found guilty by a jury of attempt (murder), aggravated battery and armed violence, and sentenced to 25 years' imprisonment. He appeals, raising the following issues: (1) whether he was denied his right to the effective assistance of counsel; (2) whether he was denied a fair trial by the prosecutor's cross-examination and remarks during closing argument; (3) whether the jury was improperly instructed on attempt (murder); (4) whether the trial court erred in denying his motion for a new trial; and (5) whether the trial court erred in denying him access to the complaining witness' mental health records.

Defendant was charged with attempt (murder), two counts of aggravated battery and armed violence against Arnold Wayne. At trial Wayne testified as follows: Defendant was a friend of Joseph Barrett, Wayne's brother-in-law, and Wayne had known defendant for some time. Ten years prior to the occurrence which forms the subject matter of this case, defendant had insulted Wayne's wife, Cleo, but had apologized after Wayne approached him about it. Defendant had gone to Wayne's home three or four times since then, looking for Barrett. On one of these occasions, one month prior to the incident comprehended in the case at bar, Wayne had told defendant not to come to his home any longer.

On February 1, 1986, Wayne went to a tavern where he had alcohol, cocaine and heroin over the course of the evening. He claimed, however, not to be intoxicated. Barrett came over some time after Wayne arrived home, and shortly thereafter the doorbell rang. When Wayne's wife used the intercom to talk to the person at the door, Wayne recognized defendant's voice as that of the individual asking for Barrett. Barrett went to the backyard to talk to defendant, and, after five minutes, Wayne followed. He opened the door, cursed at defendant, and began walking towards him as defendant pulled out a pistol. Wayne was not armed, but he continued walking toward defendant and punched him, knocking him into a fence. At this point Barrett ran off. Wayne tried to get the gun away from defendant, but defendant bent down, took the gun between his legs and attempted to shoot Wayne. Wayne slipped and fell to the ground, and, as he lay on his back, defendant shot him four times, saying "What do you think, I'm a punk or something?" Wayne arose and tried to chase defendant, who then turned and pulled the trigger a number of times, but the gun failed to fire. Wayne stopped in front of his home and Barrett took him to the hospital.

On cross-examination, Wayne stated he did not normally use heroin and cocaine and acknowledged that he failed to tell the police about his use of drugs on the night of the incident. He also testified that he did not regularly handle guns, but that he knew the difference between types of guns.

Dr. Khaja testified that he was the physician on duty in the emergency room when Wayne was brought in. Wayne had suffered a gunshot wound in the right lower back, which passed through his body and exited just below the navel, and three gunshot wounds to his right arm just below the elbow. Khaja also testified that Wayne was coherent and that a blood sample indicated that Wayne had engaged in social drinking but was not medically intoxicated. Officer Charles Popielarz testified that he spoke with Wayne in the hospital emergency room and that he appeared to be lucid.

Detective John Paladino testified that he arrested defendant at his home on the night of February 1, 1986. Defendant's mother admitted Paladino and told him that defendant was in the basement and, as he descended the stairs, he saw defendant run from a utility room into a bedroom. Paladino ran after defendant and saw him place a handgun under a mattress of a bed, which Paladino then recovered.

Detective Harold Huffman testified that he interviewed defendant in the early morning hours of February 2, 1986. Defendant denied being anywhere near Wayne's home on the previous evening and denied shooting a gun in the last three months. Huffman then had a gun residue test performed on defendant's hands, which indicated that he had recently handled a gun or had been in close proximity to one when it was discharged.

Defendant testified that he had previously purchased cocaine from both Wayne and Barrett. When he went to Wayne's home on February 1, 1986, defendant was looking for Barrett. Defendant was talking with Barrett in the backyard when Wayne rushed out of the house carrying a shiny object, which appeared to be a gun, in his right hand. Wayne stumbled and staggered, and appeared to be drunk, and yelled something like "I thought I told you that I don't want you by my backyard." Wayne hit defendant on the head with the gun and, as he attempted to do so again, defendant blocked the shot with his hand, Wayne lost control of the gun and dropped it. Both men reached for the gun, defendant grabbed the barrel while Wayne grabbed the trigger, and three or four shots went off while they were struggling. When defendant realized Wayne had been shot, he ran off toward the front of the house while Wayne shot at him. Two or three hours later, four detectives came to defendant's home and arrested him. He testified that he did not have a gun in his possession when arrested.

The defense also called Jezelle Perdue, defendant's fiancee, to testify about a conversation she had with Cleo Wayne about a month and a half after the occurrence. Following an objection by the State, the court called a sidebar and asked for an offer of proof. Defense counsel indicated that Perdue would testify that Cleo Wayne told her that at the time of the incident Arnold Wayne had come out of the house with a pistol and had hit defendant on the head. The court excluded the testimony on the ground that the defense had failed to lay a foundation for such impeachment during cross-examination of Cleo Wayne., Defendant appeals from the jury verdict convicting him on all counts.

Opinion

Defendant first argues that he was denied his right to the effective assistance of counsel, contending that his trial counsel was incompetent. The first example defendant cites is his counsel's interrogating him with reference to his previous convictions for attempt (murder) and robbery, in violation of a ruling on defendant's motion in limine that the jury should not be made aware of the names of these offenses because of their potential prejudicial effect. (People v. Mitchell (1981), 98 Ill. App. 3d 398, 424 N.E.2d 658.) Defense counsel asked the following:

"Q. Are you presently on parole?

A. Yes, I am on parole.

Q. For what?

A. For attempt murder and armed robbery.

Q. How long ago were these convictions?

A. Seven years ago -- eight years ago."

In ruling on the motion in limine the court stated that it would permit the State to show that defendant had three felony convictions, but would not allow it to name the crimes. The court shortly thereafter modified this ruling and stated further that if the defense introduced evidence of prior acts of violence by Wayne, then, in rebuttal, the State would be permitted to inform the jury of the names of defendant's prior offenses. Defendant contends that the defense did not introduce evidence of Wayne's prior acts of violence, and, therefore, by asking defendant about his parole status, defense counsel gave the State the opportunity to ask about defendant's previous convictions.

In addition, the State introduced certified copies of his convictions which indicated that defendant had been convicted of armed robbery, when in fact he had not been sentenced on that charge, and it therefore did not constitute a conviction. (People v. Lashmett (1984), 126 Ill. App. 3d 340, 467 N.E.2d 356; People v. Lieberman (1982), 107 Ill. App. 3d 949, 438 N.E.2d 516.) Defendant maintains that his counsel was incompetent in not requesting that the armed robbery be deleted from the certified copy of conviction.

Defendant also argues that his counsel was deficient in failing to lay the foundation for Jezelle Perdue's testimony impeaching Cleo Wayne and in failing to object to the prosecutor's improper cross-examination and closing argument. Defendant further claims that his counsel was inept in his attempt to present evidence of Wayne's reputation:

"Q. How long have you lived in the neighborhood around 92nd Street?

A. Thirty years.

Q. That is the same neighborhood Arnold Wayne lives in?

A. Yes, it is.

Q. Do you know people in that neighborhood?

A. Yes.

Q. What do these people in the neighborhood say about Arnold Wayne?

: Objection.

THE COURT: The form of the question is bad. I know what you are trying to do, and you may do it, but not in the manner you are doing it. If you want, I will discuss it with you.

: People in the neighborhood say anything about Arnold Wayne?

: Objection.

THE COURT: I'll sustain it. Why don't you come over here a moment. We don't need the Court Reporter.

(Whereupon Discussions were held between the Court and Counsel out of the hearing of the ...


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