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08/01/89 the People of the State of v. Thomas Cobb

August 1, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

THOMAS COBB, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 1171, 186 Ill. App. 3d 898, 134 Ill. Dec. 664 1989.IL.1185

Appeal from the Circuit Court of Lake County; the Hon. John R. Goshgarian, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. LINDBERG and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Defendant, Thomas Cobb, was charged by indictment with one count each of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(1)) and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2). After a jury trial, the prosecution nol-prossed the armed violence count, and the jury returned a verdict of guilty on the murder charge. Cobb was sentenced to a 32-year term of imprisonment. Cobb appeals both his conviction and his sentence. We affirm.

On November 3, 1986, Cobb was at the home of the victim, Betty Rogers. Betty lived with her mother, Ethel Rogers, her two sisters, Ann and Dorothy Rogers, and her niece, Shawn Johnson. Cobb and Betty had been dating and planned to watch a football game on television that evening. Cobb watched the game in the living room with Ann, Dorothy and their brother Earl. Betty and Ethel remained in the kitchen. Betty was drinking beer throughout the evening.

Cobb and Betty argued during the first half of the game. At half-time, Cobb left the Rogers home and went to his sister's house, where he resided, a short distance away. Cobb returned with some of Betty's belongings that she had left there. On occasion, Betty would stay with Cobb at his sister's home. Cobb and Betty continued arguing throughout the second half of the game.

Sometime after the game, a struggle ensued in the kitchen and Betty was stabbed four times. The police were called and, upon arrival, found Betty lying on the kitchen floor in a pool of blood. Paramedics were summoned and they took Betty to the hospital. She was pronounced dead shortly thereafter.

The police located Cobb at Victory Memorial Hospital in Waukegan, Illinois. Cobb had gone there to get medical treatment for a laceration and puncture wound to his left temple. Cobb was arrested at the hospital at 2:45 a.m. He was given Miranda warnings and interviewed on two separate occasions.

On November 12, 1986, the Lake County grand jury indicted Cobb for one count each of murder and armed violence. The trial in this matter began on May 11, 1987. The trial court ruled on several motions in limine. The court denied defendant's motions to exclude evidence that he carried a knife prior to November 4, 1986, and that he had talked of killing the decedent prior to that date. The court also denied defendant's motion to exclude evidence of a statement made by the victim after she had been stabbed. The trial court granted the State's motion to prevent defendant from presenting evidence of an incident that occurred approximately 16 years ago and for which the victim had been charged with and acquitted of murder.

At trial, Ann Rogers testified that Cobb and Betty got along sometimes and other times they did not. Two to three weeks prior to the stabbing, Ann had seen a knife in Cobb's waistband. She testified that on the night in question, she had watched a football game on television and then went to sleep on the living room couch. She was awakened by the sound of Betty's and Dorothy's voices in the kitchen. Ann got up and walked into the kitchen. As she arrived at the kitchen doorway, she saw Cobb hitting Betty with his fists. Cobb struck Betty 10 to 12 times in the head and upper body. Ann told Cobb to stop, but he did not respond. Betty fell to the floor, got up, and grabbed a bottle. She raised the bottle over her head and began to swing it at Cobb. Ann told Betty not to swing the bottle. Ann walked out of the kitchen and did not see if Betty hit Cobb with the bottle. Ann went into the living room to call for her mother. When she returned to the kitchen a couple of minutes later, she found Betty lying on the floor bleeding. There was no one else in the kitchen. She ran out the back door to go to a neighbor's home to phone the police. She saw Cobb standing by his car. She did not see a knife in Cobb's possession, nor did she see Cobb stab Betty. Ann went to Judy Williams' house to get help, and Judy called the police.

Dorothy Rogers also testified that she had seen Cobb with a knife two to three weeks prior to November 3. Cobb came over to the Rogers home, lifted his shirt to display the knife and said, "Where is Miss Mace at because I got a Mr. Mace." This was in response to a prior incident in which Betty had sprayed Cobb with mace. Dorothy also testified that Betty and Cobb had been arguing throughout the football game on November 3 and that Betty had been drinking all evening. After the game, Dorothy went to the store with her brother Earl and then dropped Earl off at Cobb's sister's house. Dorothy returned home and found Betty still in the kitchen drinking beer. Dorothy went to the stove to make a sandwich. She used a steak knife to cut the meat. While Dorothy was standing at the stove, Cobb left the kitchen to go to the bathroom. Betty then approached Dorothy and ordered her to go to bed. Instead of arguing, Dorothy decided to skip the sandwich and go to bed. As she was leaving the kitchen, she glanced over her shoulder and saw Cobb returning to the kitchen. Dorothy also saw Ann approaching the kitchen from the living room. Dorothy saw Cobb strike Betty with his fists two or three times. She did not intervene because she thought it was none of her business. Dorothy did not see Betty pick up a bottle, but did see the bottle in the air. Dorothy continued into the living room and then returned to the kitchen. She saw Betty lying on the floor and Cobb walking through the hallway and out the back door. Dorothy saw a knife in Cobb's hand but could not see the handle. Dorothy called for Ann, and the two left the house to get help. Dorothy saw Cobb standing by his car. She went with Ann to Judy Williams' home, and Judy phoned the police. Dorothy went to Cobb's sister's house before going back to the Rogers home. Dorothy denied that she argued with or struck Betty. She also denied swinging the steak knife or stabbing Betty.

Shawn Johnson also testified that she saw Cobb carrying a knife with a black handle on two separate occasions approximately two to three weeks prior to November 3. She testified that on November 3, she went to the Zion Leisure Center and returned home at approximately 9:30 p.m. She did her homework in her bedroom and went to sleep at approximately 10:30. She was awakened by her Aunt Ann and Aunt Dorothy, who were screaming. Shawn got out of bed and went into the kitchen. She saw her grandmother, Ethel, wiping blood from the floor. She also saw her Aunt Betty lying on the floor bleeding. Ann and Dorothy were not in the kitchen at this time. Shawn was standing over Betty and approximately three to four inches away from her. She saw Betty trying to raise her head. Betty then said, "Help me. He killed me," twice. Shawn then looked out the back door and saw Cobb standing on the porch. She did not see a knife in his hand. Shawn ran out of the house because she was scared. She saw Cobb get in his car and drive away very quickly. Shawn then ran to Judy Williams' house.

Larry Blum, the pathologist who performed the autopsy on Betty Rogers, was also called to testify. Blum stated that the deceased had suffered four stab wounds: one to the right shoulder; one to the neck approximately three inches below the ear; one to the upper back above the shoulder blade; and one to the back of the neck. The wound to the back of her neck also cut into her esophagus. This caused the deceased to aspirate blood into her lung and asphyxiate. Simply put, she drowned by swallowing her own blood. Blum testified that the injuries sustained were caused by a sharp object and were most likely inflicted from the rear. The wounds were consistent with the use of a knife. The deceased had no facial or upper body bruises or lacerations. The deceased had not been subjected to blunt trauma immediately prior to her death. He also testified that the deceased's blood-alcohol content was .323%. This would cause a person's reaction time to be slowed. This amount of alcohol could also cause a person to be boisterous or aggressive.

The proofs were closed, and the instructions were given. The trial court gave instructions on the defense of justifiable use of force at the defendant's request. The court refused the defendant's instructions regarding the decedent's violent character or reputation. The jury subsequently returned a guilty verdict of murder.

The cause proceeded to a sentencing hearing on December 11, 1987. The trial court first heard and denied the defense motion for a new trial and an amended motion based on newly discovered evidence. Defendant then requested that a report prepared by Dr. Suraleah Michaels, the clinical psychologist who had interviewed and tested Cobb, be considered at sentencing. Defendant had earlier offered a copy of defendant's post-arrest statement in mitigation. In the statement, defendant described his argument with Betty Rogers on the night of November 3, 1986, when she refused his request for a cigarette. Since he and Betty were having problems, he went and got her clothing from his residence when the football game ended. Later, when he returned from a trip to the bathroom at the Rogers house, he found Betty in an argument with Dorothy. The sisters were fighting, and one had a knife. Defendant tried to break up the fight. Betty cut him on the forehead with a knife or other object. He was bleeding and panicked and acted to defend himself. He was not sure what he did, but he might have cut Betty. Defendant made a statement at sentencing and expressed his regret for what had occurred. He reiterated that he had intervened in a fight between Betty and Dorothy, that Betty had cut his forehead and that he had then been triggered to act. He could have acted to hurt Betty at that time.

At the close of the hearing, the trial court sentenced defendant to a term of 32 years' imprisonment upon his conviction. Defendant then filed a timely notice of appeal.

One theory of defense relied upon in this matter was a theory of self-defense justifying Cobb's actions. The State sought through a motion in limine to prevent defendant from introducing any evidence of an incident that occurred 16 years ago in which the victim had stabbed and killed a man. The defendant sought to introduce this evidence to establish that the victim had a violent character and, therefore, may have been the aggressor. The State argues that the victim was acquitted of the charges relating to the stabbing incident and, therefore, the evidence does not establish that she had a violent character. Additionally, the State points to the fact that this incident occurred 16 years ago and is of little relevance. The court granted the State's motion, and defendant assigns error to that decision.

We find that this issue has not been properly preserved for our review. Generally, to preserve the issue of the wrongful exclusion of evidence for review, an offer of proof must be submitted. (People v. Christen (1980), 82 Ill. App. 3d 192, 196.) The purpose of an offer of proof:

"s to initially indicate to the trial court and opposing counsel, out of the presence of the jury, the substance of the evidence expected to be offered, so that opposing counsel may object to, and the court may rule on, the admissibility of the evidence presented in the offer of proof. [Citations.] If the trial court sustains an objection to the evidence presented in the offer of proof, it then serves to preserve the evidence for a reviewing court's determination of the propriety of the trial court's ruling." (People v. Duarte (1979), 79 Ill. App. 3d 110, 123.)

A detailed and specific offer of proof is necessary when it is not clear what the witness' testimony will be or his basis for so testifying. (People v. Robinson (1977), 56 Ill. App. 3d 832, 837.) If the evidence sought is obviously relevant and material, an offer of proof is not required. (Christen, 82 Ill. App. 3d at 196.) "Thus, where the trial court is sufficiently aware of the purpose for which the evidence is offered and the substance of the testimony to be elicited, an offer of proof need not be tendered." Christen, 82 Ill. App. 3d at 196.

In the case at bar, defendant did not make an offer of proof. Defendant's counsel simply stated that he was prepared to call the police officer who investigated the prior incident to testify as to a character trait of violence or turbulence. This is wholly insufficient to preserve this issue for review. "n informal offer of proof [by an attorney] which merely summarizes the witness' testimony in a conclusory manner is insufficient to preserve the error." (Mulhern v. Talk of the Town, Inc. (1985), 138 Ill. App. 3d 829, 834.) We have no way of determining exactly what the substance of the testimony was. Additionally, we do not know the basis of the officer's knowledge. The officer may have simply been recalling what other people had told him during his investigation of the incident. This would, of course, be inadmissible hearsay. We cannot fairly determine from the whole record whether excluding this undefined testimony was reversible error. (People v. Lynch (1984), 104 Ill. 2d 194, 202.) Since defendant did not adequately tender an offer of proof, we find this issue to be waived.

Defendant's next contention is that the court erred in refusing to give the jury an instruction relating to the evidence that defendant was able to adduce at trial pertaining to the victim's violent character. We disagree. Defendant's instruction No. 5 stated:

"Evidence that Betty Jean Rogers was a woman of turbulent or quarrelsome character may be considered by you in determining who was the aggressor in the instant case."

The court correctly refused this instruction, and defendant's instruction No. 5a was then submitted. This instruction stated:

"The evidence that Betty Jean Rogers was a woman of violent or quarrelsome reputation may be considered by you in determining who was ...


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