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People v. Foster

November 09, 2000


Appeal from the Circuit Court of Cook County. No. 97-CR-8760 Honorable Themis Karnezis, Judge Presiding.

The opinion of the court was delivered by: Justice Theis

Defendant John Foster was convicted of first degree murder and three counts of armed robbery after a jury trial. The trial court sentenced defendant to natural life imprisonment for murder, with concurrent 60-year sentences for the three armed robbery counts to run consecutively to the life sentence. Defendant was also sentenced to an additional 30-year sentence for a previous armed robbery conviction, which was to run consecutively to the other sentences.

Defendant appeals, arguing: (1) that the trial court erred in restricting the cross-examination of a State witness; (2) that the trial court erred in imposing an extended term for armed robbery, in imposing excessive aggregate consecutive sentences and that the defendant's harsh sentence was imposed under the trial court's mistaken beliefs as to the terms of sentencing provided by law; (3) that the trial judge erred in denying defendant's request for a jury instruction regarding the credibility of a drug addict; and (4) that by making improper and prejudicial comments regarding the defendant's failure to testify and improperly shifting the burden, the State violated the defendant's sixth and fourteenth amendment rights to a fair trial (U.S. Const., amends. VI, XIV). For the following reasons, we affirm.

On December 31, 1995, Sherman Yearby, Michelle Watts and their four children were in their bedroom. They also shared the house with Michelle's parents Jacqueline and Richard, sister Belinda, brother Richard Jr. and Belinda's four children. At 1 a.m., Jacqueline answered a knock at the door. The man at the door, later identified as defendant, was accompanied by a woman. They asked for Belinda and, before Jacqueline could call her, defendant and his companion entered the house. Armed with a gun, defendant forced Jacqueline and Yearby's nephew, Bobby, directly to Belinda's bedroom. While there, he announced that "[t]his is a stick-up" and demanded money and property. Jacqueline gave the defendant $6; Belinda gave him drugs and $25. Defendant also took $200 from Bobby.

Next, defendant went upstairs and banged on Michelle and Yearby's bedroom door. Yearby opened the door a foot, then leaned into it with his shoulder as if he was trying to close it. Defendant shot Yearby through the door. Defendant then pushed his way into the room and told Michelle to be quiet or he would shoot her also. He then rifled through Yearby's pockets as he lay unconscious on the floor, taking $200. Defendant left the room and returned downstairs to rejoin his female companion, who had remained with Belinda and Jacqueline. When the telephone rang moments later, defendant ripped the phone out of the wall before he and his companion left the house. Yearby died soon after the shooting from the gunshot wound.

Michelle, Belinda and Jacqueline later positively identified the defendant, both from photographs and in a lineup, as the man who robbed them at gunpoint and shot Yearby. All three testified at trial to the events and made in-court identifications of the defendant. After a trial, the jury found defendant guilty of the first degree murder of Yearby and three counts of armed robbery for the robberies of Yearby and Belinda and Jacqueline Watts.

On appeal, defendant first argues that the trial court erred in restricting the cross-examination of the State's witness, Belinda Watts. Prior to trial, the State filed a motion in limine to exclude any inquiry of Belinda regarding a robbery investigation which took place in January 1997. The State argued that Belinda was named as an offender, but the alleged victim, Sheila Burrell, did not file a complaint against her. Defendant stated that Burrell contacted the police to check on the status of the 1997 armed robbery case, but the police seemed only to be interested in this homicide case and did not want to ruin their witness by proceeding with the other armed robbery. Defendant urged the court to allow him to question Burrell to determine if she decided not to pursue the charges or if there had been some type of arrangement made by the State. Defendant argued that Belinda's testimony implicating the defendant might have been induced by favorable treatment by the State or influenced by bias or motive regarding the uncharged robbery. The State argued there was no consideration given in the robbery investigation. The police had tried to contact Burrell, but were unable to do so. She never filed a complaint and, therefore, there was no bias or motive to cross-examine Belinda regarding the matter. The court reserved its ruling.

Defendant then brought his own motion in limine informing the court that, when Burrell contacted the police identifying Belinda Watts as an offender in the 1997 armed robbery, she also provided them with information implicating defendant as the perpetrator of the present armed robbery and murder. He asked that Burrell's testimony concerning defendant's nickname and Illinois Department of Corrections (IDOC) records be precluded. The court denied the motion because the State said that it would not mention the IDOC records at trial.

The State later renewed its motion in limine before Belinda Watts' testimony to preclude her from being questioned about the alleged robbery in 1997. The State again stated that, since Belinda was never arrested and no charges were ever brought, the robbery was irrelevant. Defendant cited the police report which stated that the investigating officer contacted Belinda, who denied the robbery but was available for surrender. The report also stated that the officer was unable to contact the alleged victim. Defendant stated that he did not know if Burrell wanted to proceed with the charges, but he argued that Belinda might be motivated to falsely identify the defendant because she could still be charged with the crime. The court allowed the State's motion.

Defendant now argues that this limitation restricted his sixth amendment right to confront witnesses and was extremely prejudicial. The State counters, stating that, although Belinda was named as an offender, Burrell did not proceed with the allegations and this information is therefore collateral. We reject defendant's argument and affirm the trial court's limit on cross-examination.

A criminal defendant has a constitutional right to confront witnesses against him, which includes the right to conduct a reasonable cross-examination. People v. Davis, 185 Ill. 2d 317, 337, 706 N.E.2d 473, 482 (1998). A defendant can impeach a witness with evidence that the witness has been arrested or charged with a crime where it would reasonably tend to show that the witness' testimony might be influenced by bias, interest or motive to testify falsely. Davis, 185 Ill. 2d at 337, 706 N.E.2d at 482. The defendant has the right to cross-examine a witness regarding pending criminal charges without first establishing that the witness was promised something in return for his testimony. Additionally, where the facts reasonably suggest that the witness might be motivated by a promise of leniency, defendant should be permitted to explore that possibility on cross-examination. People v. Nutall, 312 Ill. App. 3d 620, 627, 728 N.E.2d 597, 604-05 (2000). However, the evidence offered must give rise to the inference that the witness has something to gain or lose by his or her testimony. "Therefore, the evidence used must not be remote or uncertain." People v. Bull, 185 Ill. 2d 179, 206, 705 N.E.2d 824, 838 (1998).

The right of cross-examination is not within the discretion of the trial court, but the scope of cross-examination does rest within the court's discretion. Nutall, 312 Ill. App. 3d at 627, 728 N.E.2d at 605. The trial court's rulings will not be overturned absent a clear abuse of that discretion resulting in manifest prejudice. Nutall, 312 Ill. App. 3d at 627-28, 728 N.E.2d at 605.

In this case, the defendant sought to cross-examine Belinda regarding a robbery about which she was merely questioned. No charges were ever filed against her and she was never arrested. There were no pending criminal charges that would bias or influence her testimony. There was also no evidence presented by defendant in the offer of proof that Belinda had been promised any leniency by the State in exchange for her testimony at defendant's trial. Further, there was no evidence offered to support an inference that the witness had something to gain or lose by her testimony. We reject defendant's contention that, because the statute of limitations had not yet expired, Belinda had a motive to lie at trial. The State submitted that the alleged victim had never filed a complaint about the incident, there was no evidence that she wanted to file charges, and the police could not locate her. Thus, the State had no leverage over Belinda.

We find then that any evidence of bias was remote and uncertain and, therefore, could not be used to cross-examine Belinda. We hold there was no abuse of discretion by the trial court in limiting the scope of ...

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