Appeal from Circuit Court of Macon County No. 97CF829
The opinion of the court was delivered by: Presiding Justice Cook
Honorable John K. Greanias, Judge Presiding.
Defendant, Terry L. Finley, was convicted of attempt (first degree murder of a police officer) and sentenced to the maximum term of 80 years' imprisonment. 720 ILCS 5/8-4(a), (c)(1), 9-1(a)(1), (b)(1) (West 1996). Defendant appeals, claiming (1) error in an improper reference by a State witness to his refusal to take a polygraph examination, (2) his trial counsel was ineffective for failing to object to the admission of a weapon with no nexus to defendant, (3) the statute under which he was sentenced violated the single subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)), and (4) his sentence is excessive. We affirm as modified and remand with directions.
Decatur police officer Neal Cline testified he stopped defendant's car on June 21, 1997, at about 1:45 a.m. As the car slowed to a stop, defendant, the driver, opened his door and began to get out. Cline ordered defendant back into the car and drew his weapon. After Cline could see the hands of defendant and defendant's two female passengers, Cline holstered his weapon and snapped the holster shut. Defendant told Cline he had failed to pull over immediately because he had not seen Cline. Cline ordered defendant to exit the car and place his hands on the roof. Instead, defendant exited the car and faced Cline with his hands raised. Defendant then stepped back, lifted his shirt, and pulled a small chrome or silver handgun from his pants. Defendant pointed the gun at Cline's stomach and pulled the trigger, but the gun did not fire. By the time Cline got his gun out, defendant had started to run.
Cline chased defendant across Crea Street, yelling for him to stop. Cline fired two shots that missed defendant, but after a third shot, defendant fell to the ground and then ran behind the house at 355 South Crea Street. When additional officers arrived, they searched the area but neither defendant nor defendant's gun was recovered. Defendant turned up at St. Mary's Hospital later in the morning with a gunshot wound to the thigh, giving the name of Charles Thompson. When questioned, defendant gave conflicting and vague accounts of how he had been shot. Nine days after the incident, Decatur firemen extinguishing a fire found a chrome-plated pistol about two blocks north of 355 South Crea street. The only fingerprint, on the interior of the gun, did not match defendant's.
One of the passengers in defendant's car, Rosemarie Banks, signed a statement at the police station that she saw defendant put a gun in his rear pants pocket as he was getting out of the car. At trial, she testified that she did not see a gun but police coerced her into saying that she did. The other passenger, Coretta Pearson, testified that, although she did not see anything, she heard Cline say either "Oh my god," or "oh damn it," followed by, "he has a gun."
Officer Jon Beggs interviewed defendant after his release from the hospital on June 21, about 11:30 a.m. Defendant said he ran from Cline because he did not have his driver's license and was fearful of being arrested and that Cline shot him as he ran between some houses on South Crea. In cross-examining Beggs, defense counsel asked the following questions:
"Q. Okay. *** [A]t any time during the interview, did he act like he was sleepy or going to go to sleep?
A. Towards the conclusion of the inter-view--uh--we started discussing the--uh--fact of him possibly taking a polygraph exam. At that point, he started to, basically, nod off--uh--when he seemed to rouse back around. Uh--he just finally told me he wasn't inter-ested in taking one at that point."
After completing cross-examination, defense counsel, during a conference in chambers, made a motion for mistrial because of the polygraph examination reference. The trial court denied the motion and instructed the jury that (1) lie detector tests, polygraph tests, are not sufficiently reliable "for a jury to decide any issue in the case"; (2) "evidence regarding polygraphs, taking one, refusing to take one, anything to do with polygraph tests, is just not admissible"; (3) such evidence did not "have sufficient proof ability as evidence to be of any assistance to the jury"; and (4) Beggs' statements regarding the polygraph were accordingly stricken, and the jury was to disregard them.
The general rule in Illinois is to preclude introduction of evidence regarding polygraph examinations and the results of those tests. People v. Jefferson, 184 Ill. 2d 486, 492, 705 N.E.2d 56, 59 (1998). The problems with polygraph evidence are twofold. First, polygraphy is not sufficiently reliable to establish guilt or innocence. Second, the quasi-scientific nature of the test may lead a trier of fact to give the evidence undue weight, notwithstanding its lack of reliability. Jefferson, 184 Ill. 2d at 493, 705 N.E.2d at 60.
In Jefferson, the defendant sought to explain her inculpatory statement with testimony that the police had said her daughter (the victim) had only a few hours to live, and if she signed the statement she could see her daughter, talk to her parents, and go home. In response the State, after a discussion with the trial judge outside the jury's presence, introduced testimony that defendant had agreed to take a polygraph test, a test was scheduled, and about 5 or 10 minutes later defendant told the officers that she wanted to tell the truth about what had happened. Despite the general rule of exclusion, the supreme court held the evidence became admissible to explain the circumstances surrounding the defendant's inculpatory statement to police, after the defendant raised the contention in her testimony that her statement was induced by promises of lenient treatment. Jefferson, 184 Ill. 2d at 496, 705 N.E.2d at 61; see also People v. Jackson, 198 Ill. App. 3d 831, 846, 556 N.E.2d 619, 629 (1990) (evidence that defendant failed polygraph examination admissible to show that failure motivated his confession, rather than ...