Appeal from the Circuit Court of Macon County. No. 93CF685. Honorable John L. Davis, Judge Presiding.
Released for Publication January 4, 1996. As Corrected January 9, 1996.
Justices: Honorable John T. McCULLOUGH, J., Honorable James A. Knecht, P.j., Concurring, Honorable Robert J. Steigmann, J., Specially Concurring
The opinion of the court was delivered by: Mccullough
JUSTICE McCULLOUGH delivered the opinion of the court:
Defendant appeals from his conviction and sentence for armed violence (720 ILCS 5/33A-2 (West 1992)) alleging (1) the trial court erred in denying a continuance to secure the presence of an alibi witness; (2) he is entitled to a new trial based on the prosecutor's reference to the absence of defendant's alibi witnesses; and (3) the court abused its discretion in allowing impeachment of defendant with his prior convictions.
Following return of the information, the defendant filed an answer to the State's pretrial discovery order on October 20, 1993, indicating he would rely on an alibi defense and might call William Matthews and Randy Hines to testify as to his whereabouts at the time of the offense. On November 12, 1993, defendant issued a subpoena for William Matthews which had not been served by the time of trial on November 22, 1993, because Matthews could not be found. On that date, defendant filed a motion for a continuance, indicating Matthews had an outstanding arrest warrant on unrelated charges and he believed Matthews would be apprehended by the time the case was again set for trial. Defendant's counsel stated that he had interviewed Matthews, who would testify that "the defendant was at [home] rather than at the scene of this shooting." The prosecutor stated that when Matthews had been identified as an alibi witness in October, the Decatur police had unsuccessfully attempted to locate him for an interview and there was no indication he would ever be available as a witness. The court denied the motion and the trial commenced.
At trial, William Broadnax, the owner of Mr. B's liquor store, testified that shortly before midnight on July 23, 1993, defendant came to his store and they got into an argument regarding employment. Broadnax had known the defendant since defendant was a child due to Broadnax' relationships with defendant's aunt and father. As defendant left the premises he threatened Broadnax that he was going to "get something to blow the damned place up." Broadnax called the Decatur police but when an investigator arrived, defendant could not be located and the officer left.
Broadnax testified that while he was totalling up the receipts, sometime before 2 a.m. on July 24, he heard a gunshot and looked out the drive-up window into the well-lit parking lot. He saw defendant with a long gun in his hands straddling the fence separating the parking lot from the adjacent residential area. He then saw defendant fire a second shot at the passenger side of Broadnax' red pickup truck, which was parked in the lot immediately across from the drive-up window. Defendant then climbed off the fence and fled. WhenBroadnax inspected his truck, he found two gunshot holes in the door and window.
Randy Hines, who admitted a conviction for attempt (burglary) in 1987, testified on behalf of the defendant. He stated that in the early morning hours of July 24 he was visiting at defendant's house, which was just around the corner from Mr. B's. Shortly before 2 a.m., Hines drove to Mr. B's to purchase liquor. As he left the store's parking lot through the alley, he heard a shot and ducked down. After hearing a second shot, he looked and saw a lot of people lying on the ground in the parking lot, but he did not see the defendant. He returned to the defendant's residence and defendant was there.
The defendant testified that he had gotten into an argument with Broadnax at Mr. B's shortly after midnight on July 24, after which he returned to his home. He denied making any threats or ever returning to Mr. B's later that morning. He stated Mr. B's was less than a three-minute walk from his home, where he had been drinking and playing cards with friends. On direct examination, he identified those friends as "Allen," "Maurice," Randy Hayes and Hines. On cross-examination, he stated those present included Randy Hayes, "Maurice or Torice," "Clarence," and his stepfather William Matthews.
At the instruction conference following the close of the State's case, the prosecutor indicated that he intended to impeach defendant with evidence of his prior convictions for aggravated battery and unlawful restraint should he testify. Defendant's counsel objected, stating that neither conviction impacted defendant's veracity and both were unduly prejudicial. Without analysis, the court held the prior convictions would be admitted and, following the close of both the State's and defendant's case, the judge informed the jury as to the nature of both convictions.
Defendant first argues the trial court erred in denying his request for a continuance to secure the presence of Matthews as an alibi witness since he was diligent in attempting to secure his presence by issuing a subpoena as soon as the trial date was set and by disclosing Matthews' identity in sufficient time to secure his statement. The State points out that the Decatur police had unsuccessfully attempted to locate Matthews since October and, due to the outstanding arrest warrant, there was no indication Matthews would ever be available as a witness. Moreover, he still had not been located by the time of the hearing on post-trial motions, six weeks after trial. The State also notes that the offer of proof on Matthews' anticipated testimony failed to indicate whether Matthews was personally present with defendant at the time of the shooting and so lacks materiality for affordingan alibi defense. During his trial testimony, defendant stated he had been at his home with four additional persons at the time of the shooting, any one of whom might have testified to the same purported defensive matters. See People v. Ladas (1957), 12 Ill. 2d 290, 296, 146 N.E.2d 57, 60.
The denial of a request for a continuance sought to secure the presence of a witness should be reviewed under the following factors: (1) whether defendant was diligent in attempting to secure the witness for trial; (2) whether defendant shows that the testimony was material and might affect the jury's verdict; and (3) whether the failure to grant the continuance would prejudice the defendant. ( People v. Ward (1992), 154 Ill. 2d 272, 307, 609 N.E.2d 252, 266, 181 Ill. Dec. 884.) The granting or denial of such a motion lies in the sound discretion of the trial court. ( People v. Cobb (1983), 97 Ill. 2d 465, 477, 455 N.E.2d 31, 36, 74 Ill. Dec. 1.) The denial of a motion for continuance is not an abuse of discretion where there is no reasonable expectation that the witness will be available in the foreseeable future. People v. Watts (1990), 195 Ill. App. 3d 899, 917, 552 N.E.2d 1048, 1060, 142 Ill. Dec. 307 (defendant given five days to locate a witness before trial and the court denied a continuance where there were clear indications she was unwilling to testify and had purposely absented herself from the jurisdiction).
A reviewing court can sustain the decision of the trial court on any grounds called for by the record, regardless of whether the circuit court relied on those grounds. ( Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148, 478 N.E.2d 384, 389, 88 Ill. Dec. 69.) The facts support the trial court's denial of defendant's motion for a continuance. Matthews had not been apprehended from October through the post-trial hearing in late December 1993. Defendant did not subpoena any other of the witnesses who purportedly could have testified to defendant's whereabouts at the time of the offense nor did he provide the State access to them by revealing their full names or addresses. The trial court did not abuse its discretion in denying the motion.
Defendant next argues he is entitled to a new trial because the prosecutor referred to the absence of his alibi witnesses. The State contends the issue is waived because defendant failed to object to the prosecutor's sole reference to the "long list" of alibi witnesses disclosed for the first time during defendant's direct testimony, and to the prosecutor's closing argument referring to that list of witnesses followed by the oblique statement "Well, what happened?" We agree with the State that the issue may be deemed waived (see People v. Cloutier (1993), 156 Ill. 2d 483, 507, 622 N.E.2d 774, 786, 190 Ill. Dec. 744); however, we find the statements did not constitute error.
While it is improper for the State to comment unfavorably on thedefendant's failure to produce a witness equally accessible to the State, where the witness has material alibi evidence more accessible to the defendant the State may properly comment on defendant's failure to call him. People v. Melton (1992), 232 Ill. App. 3d 858, 861, 596 N.E.2d 1246, 1249, 173 Ill. Dec. 367; see People v. Blakes (1976), 63 Ill. 2d 354, 358-60, 348 N.E.2d 170, 173-74 (it was not error for the prosecutor to cross-examine the defendant on the identity of patrons at a club where he professed to be at the time of the offense or to comment that the persons identified had not been called to testify).
Here, the prosecutor never directly referred to the absence of Matthews (a witness potentially inaccessible to both parties) but merely to the "long list" of alibi witnesses defendant had referred to in his direct testimony. Since defendant referred to those witnesses by their first names only and disclosed neither an identifying address nor phone number, it must be presumed they were accessible only to him (see Melton, 232 Ill. App. 3d at 861, 596 N.E.2d at 1249), and the prosecutor's questions and comments did not constitute error.
Defendant last contends the trial court improperly allowed impeachment of his testimony by the introduction of his prior convictions for aggravated battery and unlawful restraint, because both are violence-related crimes, rather than crimes impacting his veracity, and their admission increased the likelihood the jury viewed the convictions as evidence of a propensity to commit crimes. Defendant contends such indiscriminate admission has been disapproved in People v. Williams (1994), 161 Ill. 2d 1, 641 N.E.2d 296, 204 Ill. Dec. 72 (prior conviction for voluntary manslaughter erroneously admitted at defendant's trial for murder).
As an initial matter, the State contends the issue is waived for defendant's failure to preserve it in his post-trial motion. (See Cloutier, 156 Ill. 2d at 507, 622 N.E.2d at 786.) However, due to the potential for unfairness, we elect to review the matter under the plain error ...