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05/19/97 PEOPLE STATE ILLINOIS v. CEDRIC GRISSET

May 19, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CEDRIC GRISSET, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable John Brady, Judge, Presiding.

As Corrected June 25, 1997. Released for Publication June 25, 1997.

The Honorable Justice O'brien delivered the opinion of the court. Cahill, J., and Theis, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Following a jury trial, defendant, Cedric Grisset, was found guilty of first-degree murder and sentenced to 50 years in prison. On appeal, defendant contends: (1) the trial court erred in refusing to allow the testimony of Detective Luera concerning the statement defendant made to the detective shortly after his arrest; (2) the trial court erred by refusing to give an instruction on second-degree murder based on provocation; (3) the trial court erred in refusing to preclude his court-reported statement; (4) the trial court unduly restricted the direct examination of defendant; (5) the trial court unduly restricted the cross-examination of the assistant State's Attorney; (6) the State made prejudicial comments during closing argument; (7) the trial court denied him his constitutional rights of due process and equal protection when it sentenced a similarly situated codefendant to a substantially lesser period of incarceration; (8) the trial court abused its discretion by sentencing him to 50 years in prison; and (9) the State did not prove him guilty beyond a reasonable doubt. We affirm.

At trial, Essie Gray testified that around 10 p.m. on September 14, 1993, she was sitting in her car, which was parked on May Street between 101st and 102nd Streets. She had driven her brother, Kenneth, to that location so he could retrieve a telephone number from a relative's car. As Kenneth walked towards Essie's car, a second car drove up and parked behind Essie's car. Essie recognized the driver of that car as codefendant Debra Dalloz, and she saw a black man, later determined to be defendant, in the passenger seat.

Essie testified she heard Dalloz say "there he is, there Westside is." "Westside" was Kenneth's nickname. Defendant exited the vehicle and approached Kenneth. The two men stood about one to two feet apart and spoke for approximately five minutes.

Essie testified Kenneth backed up a little bit, and then defendant pulled a gun and started shooting. Kenneth had nothing in his hands when defendant shot him. Defendant then entered the passenger seat of the car in which he had arrived, and the car drove north on May Street.

Essie testified Kenneth ran toward a backyard between two houses. Essie ran after Kenneth. When Kenneth got to the backyard, he told Essie he had been shot, and he fell to the ground. Essie called the police and told them the offender's car was a blue Horizon. She also described the driver as a 200-pound white lady with blonde hair and a pale complexion. At approximately 7 a.m. the next morning, Essie viewed a lineup at Area Two police headquarters and identified Dalloz as the driver of the car. Detective Frank Luera testified Luera Essie was unable to identify defendant in a lineup.

Officer George Vanderschoot testified that, at approximately 10:20 p.m. on September 14, 1993, he received a call of a man shot at 10140 South May. When he arrived at the scene, Vanderschoot found Kenneth Gray lying dead on the ground between two buildings. Vanderschoot did not observe any weapons on Kenneth, nor were any weapons recovered from the crime scene. Vanderschoot spoke with Essie Gray, who described the offenders. Vanderschoot then broadcast the description to other police personnel.

Sergeant James Glynn testified that, at approximately 10:17 p.m. on September 14, 1993, he monitored a call of a man shot. Shortly thereafter, he monitored another message describing two offenders who were wanted for the shooting. Glynn began proceeding to 118th and Morgan, where, the message indicated, the vehicle was headed.

Glynn testified that, at approximately 115th and Morgan, he saw the wanted offenders and vehicle proceeding north on Morgan. Glynn made a U-turn and began following them. Glynn broadcast the location and direction of the vehicle. At approximately 115th and Carpenter, several police cars converged on the area and the officers arrested the individuals inside the vehicle. At that time, one of the officers on the scene showed Glynn the butt of a gun sticking out from behind the console on the passenger side of the vehicle. The officers secured the vehicle until the crime lab arrived.

Joseph Thibault, a criminalist with the Chicago police crime laboratory, testified defendant's right palm and left palm testified positive for gunshot residue. Dalloz's left palm also tested positive for gunshot residue. Thibault testified that a person can acquire gunshot residue in three ways: by firing a gun, handling a gun, or being in close proximity to a discharged weapon.

Assistant State's Attorney Peggy Chiampas testified she spoke with defendant on September 15, 1993, in a conference room at Area Two police headquarters. Also present were Detective Luera and a court reporter who took down defendant's statement. Defendant told Chiampas that, at about 10 p.m. on September 14, 1993, he was at his grandmother's house when Dalloz came by. Dalloz told him that Kenneth had hit her in the face with a book because Kenneth was upset that she was going to have a drink with another man. Dalloz also told defendant she wanted to kill Kenneth, and she asked defendant to get her a gun or a knife.

Defendant told Chiampas that he grabbed a loaded gun and went outside to a blue four-door Plymouth. Dalloz entered the driver's seat, and defendant entered the passenger seat. Dalloz eventually drove to 101st and May, where she saw Kenneth. Dalloz told defendant to get out of the car. Defendant pulled the gun out of his pocket, walked up to Kenneth, and started shooting at him. Kenneth ran away, and defendant jumped in the car and Dalloz drove them away from the crime scene.

Defendant told Chiampas that Dalloz thanked him, drove to the Hollywood liquor store, and bought him some beer. Then they drove to the middle of his grandmother's block, where he took the shells out of the gun and put them in the sewer. Defendant put the gun in the ash tray of the car, and the police later stopped them.

Defendant's testimony at trial mirrored his court-reported statement to Chiampas except for one crucial difference: at trial, defendant claimed he shot Kenneth because he saw a "chrome object" in Kenneth's hand. Defendant also testified he related that information to Chiampas and Detective Luera prior to the court-reporter taking down his statement. However, Chiampas testified that defendant never told her he had seen anything in Kenneth's hand. Detective Luera never testified about whether defendant stated he had seen an object in Kenneth's hands prior to the shooting.

The jury found defendant guilty of first-degree murder, and the trial court sentenced him to 50 years in prison. Defendant filed this timely appeal.

First, defendant argues the trial court erred by refusing to allow Detective Luera to testify that defendant told him and Assistant State's Attorney Chiampas that he had seen "something" in Kenneth's hands prior to the shooting. Defendant contends Detective Luera's testimony was admissible to impeach defendant's court-reported statement, in which he failed to mention seeing an object in Kenneth's hands prior to shooting him. Defendant also contends Detective Luera's testimony was admissible to impeach Chiampas' testimony that defendant never mentioned seeing anything in Kenneth's hand.

We disagree. The trial court permitted defendant to testify he had seen a chrome object in Kenneth's hands prior to the shooting. Thus, Detective Luera's testimony would have been about a prior statement made by defendant, that he had seen "something" in Kenneth's hand, which was consistent with his trial testimony. Proof of such a prior consistent statement generally is inadmissible as hearsay. People v. Henderson, 142 Ill. 2d 258, 310, 154 Ill. Dec. 785, 568 N.E.2d 1234 (1990).

Defendant argues, though, that the State claimed he had recently fabricated his trial testimony that he had seen a chrome object in Kenneth's hand prior to shooting him. Therefore, the trial court should have allowed his prior consistent statement to Detective Luera. In People v. Emerson, 97 Ill. 2d 487, 501, 74 Ill. Dec. 11, 455 N.E.2d 41 (1983), People v. Ashford, 121 Ill. 2d 55, 71, 117 Ill. Dec. 171, 520 N.E.2d 332 (1988), People v. Gacho, 122 Ill. 2d 221, 250, 119 Ill. Dec. 287, 522 N.E.2d 1146 (1988), People v. Harris, 123 Ill. 2d 113, 139, 122 Ill. Dec. 76, 526 N.E.2d 335 (1988), and People v. Henderson, 142 Ill. 2d 258, 310, 154 Ill. Dec. 785, 568 N.E.2d 1234 (1990), our supreme court held that when it is charged that the witness recently fabricated his testimony or has a motive to testify falsely, proof that he gave a similar account before the motive existed or before the effect of the account could be foreseen is admissible. Thus, under Emerson, Ashford, Gacho, Harris, and Henderson, defendant's statement to Detective Luera was admissible only if he made that statement before he had the motive to testify falsely.

However, in People v. Williams, 147 Ill. 2d 173, 227, 167 Ill. Dec. 853, 588 N.E.2d 983 (1991), the supreme court held "prior consistent statements are admissible to rebut a charge or an inference that the witness is motivated to testify falsely or that his testimony is of recent fabrication, and such evidence is admissible to show that he told the same story before the motive came into existence or before the time of the alleged fabrication. " (Emphasis added.) In People v. Antczak, 251 Ill. App. 3d 709, 190 Ill. Dec. 788, 622 N.E.2d 818 (1993), the appellate court construed Williams to mean that when a witness is charged with recently fabricating his testimony at trial, prior consistent statements are admissible regardless of whether the motive to testify falsely existed at the time the witness made those prior consistent statements. In effect, Anctzak held that the supreme court in Williams overruled its decisions in Emerson, Ashford, Gacho, Harris, and Henderson that prior consistent statements are admissible to rebut a claim of recent fabrication only if those prior statements were made before the motive to testify falsely arose.

However, a careful examination of Williams reveals that, in analyzing the issue as to whether the trial court erred by admitting a witness' prior consistent statement into evidence, the Williams court considered whether the witness had the same motive to fabricate at the time she made the prior consistent statement as she did at trial. Further, in its analysis of the issue, the Williams court cited with approval both Harris and Emerson, as well as two other cases, People v. Clark, 52 Ill. 2d 374, 288 N.E.2d 363 (1972), and People v. Titone, 115 Ill. 2d 413, 105 Ill. Dec. 923, 505 N.E.2d 300 (1986), in which the court considered whether the motive for fabrication existed at the time of the witness' prior consistent statements. Finally, we note that subsequent to Williams, the supreme court in People v. Patterson, 154 Ill. 2d 414, 453, 182 Ill. Dec. 592, 610 N.E.2d 16 (1992), cited Emerson with approval and held that a witness' prior consistent statements were inadmissible because the motive to fabricate existed at the time the statements were made. Therefore, we conclude that Emerson, Ashford, Gacho, Harris, and Henderson are still good law. Accordingly, defendant's prior consistent statement to Detective Luera was admissible to rebut the charge of recent fabrication only if the motive to fabricate did not exist at the time he made that statement.

Defendant made his statement to Detective Luera, that he had shot Kenneth because he saw "something" in Kenneth's hands, after being arrested by the police who had also recovered the gun from his car. Thus, defendant had a motive to fabricate when he spoke with Detective Luera, and therefore defendant's statement was not admissible at trial.

Defendant makes several more arguments in support of his contention that the trial court erred in refusing to allow Detective Luera's testimony about defendant's statement that he saw something in Kenneth's hands prior to shooting him. First, defendant argues that his court-reported statement, in which he failed to mention seeing anything in Kenneth's hands, was inconsistent with his trial testimony that he had seen a chrome object in Kenneth's hands prior to the shooting. Therefore, the trial court should have allowed in his statement to Detective Luera in order to rehabilitate him. Where a witness has been impeached by means of a prior inconsistent statement, he may bring out all prior statements if they explain or disprove the making of the inconsistent statement. People v. Williams, 147 Ill. 2d at 227.

Here, defendant's court-reported statement was admitted not merely for impeachment purposes, but as substantive evidence. Therefore, Williams is factually inapposite. Further, even if Williams did apply here, defendant's prior statement to Detective Luera is not admissible because it does not explain why his court-reported statement failed to include an account of the object in Kenneth's hands, nor does the statement to Detective Luera disprove the court-reported statement.

Second, defendant argues the trial court should have admitted his statement to Detective Luera in order to prevent the jury from receiving a "misleading impression" about the court-reported statement. We reject this argument. During the court-reported statement, defendant was asked open-ended questions that allowed him to explain fully the circumstances surrounding his shooting of Kenneth. The entire statement was admitted into evidence. The jury was not "misled" in any way.

Third, defendant contends a prior consistent statement may be admitted where substantial doubt is raised as to whether the impeaching statement was actually made. See People v. Rodriguez, 58 Ill. App. 3d 562, 569, 16 Ill. Dec. 129, 374 N.E.2d 904 (1978). As discussed above, defendant's court-reported statement was admitted not merely for impeachment, but as substantive evidence. Further, there is no doubt defendant made the court-reported statement. Accordingly, Rodriguez does not apply here.

Fourth, defendant argues the compulsory process clause of the sixth amendment grants a defendant the right to call witnesses in his favor and, therefore, the trial court erred when it refused to permit the testimony of Detective Luera. In support, defendant cites Rock v. Arkansas, 483 U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987). In Rock, the United States Supreme Court held that a per se rule excluding all hypnotically refreshed testimony impermissibly infringed on a criminal defendant's right to call ...


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