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06/16/89 the People of the State of v. Jackson L. Neely

June 16, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JACKSON L. NEELY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

540 N.E.2d 931, 184 Ill. App. 3d 1097, 133 Ill. Dec. 65 1989.IL.911

Appeal from the Circuit Court of La Salle County; the Hon. Fred P. Wagner, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. HEIPLE and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

Prior to trial, the State filed a motion in limine seeking to exclude all evidence of an alleged cocaine delivery made by the victim, Thomas Bowers, to Neely's codefendant, Gary Goldsmith, on the evening of the alleged offenses. At the hearing on the motion, defense counsel stated that Gary Goldsmith and Madelyn Ugolini would testify that, 45 minutes prior to the alleged offenses, Bowers had sold a small quantity of cocaine to Goldsmith. The trial court granted the motion over the defendant's objection.

At trial, Thomas Bowers testified that at about 4 p.m. on March 21, 1986, he had met Gary Goldsmith in a Mendota tavern. Around 6 p.m., Bowers, Goldsmith, and Bill Askey drove to a low-income housing unit in Mendota and picked up the defendant. They then rode to Bowers' trailer, where they played music and drank beer.

Bowers testified that at about 8 p.m., he, Goldsmith, and the defendant returned to the low-income housing unit. Inside, the defendant approached Bowers from behind and hit him on the back of the head, causing Bowers to fall to the floor. The defendant then kicked Bowers in the face, held him down by the hair, and stepped on his forehead. After kicking him some more, the defendant took $20 from Bowers' pocket and stole his wallet.

Bowers further testified that the defendant and Goldsmith blindfolded him and drove him out into the country, where they left him. According to Bowers, the defendant stated that if Bowers told anyone about the incident they would kill him. Bowers found his way to the home of a friend, who gave him a ride home. He later received medical treatment for his injuries. While in the hospital, a police officer questioned him about the offense. Bowers identified the defendant in a police photo book as one of his assailants.

On cross-examination, Bowers testified that he did not know who had struck the first blow. He also said he did not know if Goldsmith kicked him or took his wallet.

The codefendant, Gary Goldsmith, testified for the defense. Goldsmith, who had pled guilty to a charge of aggravated battery in the instant cause, stated that he was the defendant's friend and cousin. He also testified that he, not the defendant, had beaten Bowers. He had done so because earlier in the evening Bowers had sold him something that Goldsmith did not believe was worth the $20 he had paid for it. According to Goldsmith, during the fight the defendant had helped get the children out of the way and had tried to stop Goldsmith from beating Bowers. Goldsmith stated that he alone had taken the $20 from Bowers, blindfolded him, and driven him into the country.

Madelyn Ugolini corroborated Goldsmith's testimony that when Goldsmith had started hitting Bowers, she and the defendant had taken the children upstairs. She also stated that the defendant pleaded with Goldsmith to stop.

The defendant first argues on appeal that the trial court erred in excluding evidence of the alleged drug delivery Bowers made to Goldsmith on the evening of the offenses. The defendant contends that he was denied his constitutional right to present a defense and to confront his accusers.

The State replies that the defendant has waived this issue because he did not make an offer of proof at trial nor did he properly raise it in his post-trial motion. We note, however, that the motion in limine was based on statements by Goldsmith and Ugolini which were disclosed in discovery. The defendant also stated in his post-trial motion that the trial court had improperly granted the motion in limine because it prevented the defendant from revealing all of the ...


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