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12/20/89 the People of the State of v. Joseph A. Ward

December 20, 1989





548 N.E.2d 1120, 192 Ill. App. 3d 544, 139 Ill. Dec. 564 1989.IL.1987

Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. UNVERZAGT, P.J., and DUNN, J., concur.


Following a jury trial, the defendant, Joseph A. Ward, was found guilty of the offense of residential burglary and sentenced to serve a term of seven years in the Department of Corrections. Defendant appeals, contending that he was denied a fair trial by the admission into evidence at trial of plea-related Discussions he initiated with the police and by remarks by the prosecutor insinuating that the defendant's alibi witness had been paid to testify.

The testimony at trial revealed the following facts. On June 2, 1987, at approximately 4:17 a.m., a man made an unauthorized entry to the home of Stewart and Karen Gilbert and removed property belonging to John O'Connor, who was living with the Gilberts. Karen Gilbert, who had been asleep on the living room couch and who was awakened by the unauthorized entry, described the intruder as having blond hair to his shoulders, medium build, and wearing blue jeans but no shirt. Earlier in the evening she had observed a man matching that description staring at her from outside her home. As the intruder went through the Gilbert residence, Karen was able to observe the sides of the man's face for a few seconds. After the man exited the residence, the police were called, and Karen gave them the above description. Karen admitted that right after the incident, she told the police that she had kept her eyes closed when the front door opened.

Defendant was apprehended a short time later and brought to a nearby gas station to be viewed by Mrs. Gilbert. Although she was fairly positive that the defendant was the man she saw in her home, she wanted to wait to be sure. Defendant agreed to be taken to the police station to be photographed and fingerprinted. He was then released.

On June 3, 1987, after viewing a photographic lineup for approximately 15 seconds, Mrs. Gilbert selected the defendant's photograph as a picture of the individual who had been in her home the early morning hours of June 2, 1987.

On June 20, 1987, defendant was arrested and charged with the residential burglary of the Gilbert residence on June 2, 1987. Defendant was questioned by Detective T.J. Strickland, who advised him of his Miranda rights and explained that he wished to question him about the residential burglary charge. Defendant responded that he had been at the Walnut Tap when the burglary occurred. Strickland asked the defendant how he knew what time the burglary occurred, to which the defendant responded that he assumed it occurred at night and that he had been at the Walnut Tap between the hours of 11 p.m. and 12:30 a.m. Defendant denied being in the area of the Gilbert residence. When Strickland told defendant that Mrs. Gilbert had been sleeping on the couch and had identified him, defendant told Strickland that he knew a lot of narcotics dealers in Elgin and would like "to work this off." Strickland told the defendant that the police could not make any deals, and the only thing he could do was to tell the State's Attorney that the defendant had cooperated. Defendant admitted that he made the statement because he wanted to go home.

Defendant's alibi witness was Glen Negler. According to Negler, he was with the defendant at Wiese's Boulevard Tap until approximately 4:30 a.m. on June 2, 1987. The bar was only open till 4 a.m. but it took them a while to get out of the parking lot. After leaving the bar, Negler dropped the defendant off by a baseball field.

On cross-examination, Negler was asked when he was first approached about being a witness for the defendant and by whom. He explained that he had first been contacted by Rick Stahl, an investigator for the public defender's office on March 3, 1988, a few days prior to trial. On that same day, Negler also spoke with the prosecutor and Detective Strickland. Negler could not remember being asked how he happened to remember the events of June 1, 1987, or telling the prosecutor and Strickland that Rick Stahl had told him about the events of that night. After he testified that no one had contacted him about the case prior to March 3, 1988, the prosecutor asked, "Mr. Negler, how much are you getting paid to testify?" The trial court sustained an objection to the question, and the parties went into chambers for a conference regarding the matter.

During the conference, the prosecutor indicated that during her interview with Negler, he had told Detective Strickland and her that he was getting paid for testifying and asked them how he was supposed to be paid. The prosecutor contended that those comments showed a bias or interest on the part of the witness in favor of the defendant.

The parties returned to the courtroom, and the trial Judge ordered the prior question of the prosecutor stricken, and the jury was instructed to disregard it. Negler was then further cross-examined by the prosecutor as follows:

"Q. Mr. Negler, isn't it a fact that on March 3 of 1988 at approximately 5:40 p. m. while Detective Strickland and I were interviewing you, you asked us how you were supposed to get paid for testifying?

A. No.

Q. You never asked how you were getting paid?

A. No.

Q. Did you -- .

A. I figured on my own from what I know from a subpoena you would get an amount of money for showing up from the court, but I did not ask you that question.

Q. Didn't you ask or didn't you tell Detective Strickland and me that you were told that you would get paid $15 to come and testify today?

A. I knew that on my own. I don't know the exact amount, but I know myself how much you get, somewhere in that range.

Q. Did you tell Detective Strickland and me something along the lines of getting paid for testifying for coming to save Joe's hide, or words to that effect?

A. No, not that I recall.

Q. Mr. Negler, you just said no, not that I recall. Does that mean you didn't say it or does that mean ...

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