*1 questions Castle, fact for the Commission resolve. Air Ill. at 67, 67 N.E.2d 180. Though might we draw different conclusions evidence, we permissible are not to those infer ences drawn judgment Commission or substitute our for that the Commission such questions of fact unless the Commission’s findings are against weight the manifest Wagner evidence. Cast ings Comm’n, Co. v. Industrial 241 Ill. App. 3d 397, 405 Given the presented, circumstances we cannot findings Commission’s against weight manifest of the evi dence. reasons,
For the aforementioned we affirm the decision confirming circuit court decision the Commission.
Affirmed. McCULLOUGH, EJ, RAKOWSKI, COLWELL, HOLD- RIDGE, JJ., concur. ILLINOIS,
THE PEOPLE Plaintiff-Appellee, OF THE STATE OF v. TERRY FINLEY, L. Defendant-Appellant.
Fourth No. District 4—98—0350 Argued May 25, Opinion April filed 2000. 1999. Rehearing May 19, denied *2 J., MYERSCOUGH, specially concurring.
Daniel (argued), D. Yuhas and Jenifer L. Appellate Johnson both of State Office, Springfield, Defender’s appellant. (Norbert Fichter, Attorney, Goetten,
Lawrence R. State’s Decatur J. Biderman, Dodegge Attorneys J. (argued), Robert and Thomas R. all State’s Office, counsel), Appellate People. Prosecutor’s for the PRESIDING JUSTICE opinion COOK delivered the of the court: Defendant, Terry Finley, L. degree was convicted of officer) murder of a police and sentenced to the maximum term of (b)(1) years’ imprisonment. 4(a), (c)(1), 1(a)(1), 720 ILCS 5/8 — 9— (West 1996). (1) appeals, claiming Defendant in an improper error ref- erence State witness to his refusal to take examina- (2) tion, his trial counsel failing object was ineffective for defendant, admission of a weapon with no nexus statute under which he single subject was sentenced violated the rule of the (111. iy 8(d)), Illinois Constitution Const. and his sentence is excessive. We affirm modified and remand with direc- tions.
Decatur Neal he stopped officer Cline testified to a stop, car on June at about 1:45 a.m. As car slowed defendant, driver, began get his and out. Cline opened door weapon. ordered defendant into the car and drew his After Cline back pas- female could see the hands of defendant and defendant’s two sengers, weapon snapped Cline bolstered his the holster shut. De- pull immediately fendant told Cline he had failed to over because he place ordered car and had not seen Cline. Cline defendant exit the Instead, exited his hands on roof. defendant the car and faced back, Cline his raised. Defendant then lifted his stepped hands shirt, handgun pants. chrome or his De- pulled small silver from pointed pulled trigger, fendant at Cline’s but gun stomach By got gun out, did not the time defendant had gun fire. Cline started to run. Street, him to yelling stop.
Cline chased defendant across Crea shot, defendant, Cline fired two that missed but after a third de- shots fell to the and then ran at 355 South ground behind house arrived, they When searched area Crea Street. additional officers neither nor defendant’s was recovered. Defendant defendant gunshot Hospital morning at St. later in the with a up Mary’s turned giving Thompson. the name of Charles When thigh, wound questioned, gave conflicting vague accounts of incident, days after Decatur firemen had been shot. Nine chrome-plated pistol two blocks extinguishing fire found *3 fingerprint, the 355 South Street. The interior north of Crea gun, of the did not match defendant’s. Banks, car, signed the in Rosemarie passengers
One of defendant’s put gun police at the station that she saw statement trial, At she pocket he was out of the car. pants getting his rear saying her into police that she did not see coerced testified that, Pearson, The testified al- passenger, she did. other Coretta that “Oh anything, my heard Cline either though she did not see she it,” by, gun.” “he has a god,” or “oh damn followed interviewed defendant his release Officer Jon he ran from on June 11:30 a.m. Defendant said hospital license fearful of he not have his driver’s and was Cline because houses shot him as he ran between some being arrested and that Cline defense asked the cross-examining Beggs, In counsel on South Crea. following questions: *** interview, did he act like “Q. Okay. any time [A]t going go sleep? to sleepy
he or to Yes,he A. did.
Q.When was that? A. Towards conclusion of the started interview—uh—we discussing possibly taking the—uh—fact of him exam. to, At point, basically, that he started nod off—uh—when seemed just to rouse back around. finally Uh—he told me he wasn’t taking point.” interested in one at that cross-examination, counsel, during After completing defense chambers, conference in made a motion for mistrial because polygraph examination reference. The trial court denied the motion (1) tests, jury and instructed the detector tests, polygraph lie (2) sufficiently case”; “for a decide reliable to issue one, “evidence regarding polygraphs, taking refusing to take (3) tests, anything to do just admissible”; with such evidence did ability not “have sufficient proof as evidence to be of assistance to the jury”; regarding poly- statements graph stricken, were accordingly and the to them.
The general rule in preclude Illinois is to introduction of evi dence regarding polygraph examinations and the results of those tests. Jefferson, 184 Ill. 2d The problems with polygraph First, polygraphy are twofold. is not sufficiently reliable to guilt Second, establish quasi- innocence. scientific may nature of the test a trier give lead of fact to the evidence weight, undue notwithstanding reliability. Jefferson, its lack of Jefferson, the defendant sought explain her inculpatory state (the victim) ment testimony daughter had said her only live, had few signed hours and if she statement she daughter, see her parents, talk to her go home.
State, after a
judge
pres
discussion with the trial
the jury’s
outside
ence,
introduced
poly
that defendant had
agreed
take a
test, a
scheduled,
test
de
and about 5 or 10 minutes later
told
the officers that she
truth
wanted
tell the
about what
happened.
exclusion,
Despite
general
rule of
the supreme
court held the
explain
evidence became admissible to
the circum
surrounding
inculpatory
police,
stances
statement
after the defendant raised the
her
contention
her
statement
by promises
was induced
of lenient
Jefferson,
treatment.
It
also
to introduce the results of a
exami
improper
conducted on a
than the defendant.
v.
People
nation
witness other
Gard,
191, 205,
1026,
(plain
2d
158 Ill.
632 N.E.2d
1033
error
balanced,
though
partially
even
closely
evidence was
admission,
responsible
object).
improper
and defendant did not
It is
test,
a
polygraph
to refer to the fact that defendant was offered
that
he
examina
disclosing
refused
even without
results of
99,
1066,
103,
tion.
v.
129 Ill.
3d
471 N.E.2d
People Eickhoff,
App.
Lewis,
In
App.
269 Ill.
Is Miller and Heiple examination has been mentioned? Justices concern decision created a dissented from Gard because their Gard, 206, 208-09, per rule. Ill. 2d at 632 N.E.2d 1033-35 se J., Heiple, J., dissenting). Miller and (Miller, dissenting, and Justices however, in the in the recent Heiple majority, most admitted; case, Gard, In the results of the test were Jeffer Jefferson. In Lewis, a test. present son and the case involve a reference to facts, immediately like case on its the trial court case most this objection, testimony, an struck the and asked the to dis sustained Nevertheless, had been denied regard it. we concluded that defendant trial, noting extensive conflict between the witness who fair “ ” take exam’ and the statements defen ‘agreed 308; Lewis, see also dant. (during Britt, a poly had taken accomplice indicated questioning, State’s prejudicial impact graph; that determination held discretion). per conclude there is no lies trial sound We within court’s and we must determine whether present se rule in the facts fair trial. defendant was denied a present case and Lewis. exist between
Significant differences principal wit- from the indication that profited State present test. case it is clear ness In the passed to take a that he refused was harmed the evidence Ohio, 619, 49 L. Ed. 2d 426 U.S. Doyle test. (1976), held that use Supreme 96 S. Ct. Court of a the due impeachment purposes defendant’s silence violated *5 Nevertheless, process Doyle clause of the fourteenth amendment. where, for the trial example, violation can constitute harmless error question jury an objection sustains to the and advises the to ignore argument the answer and no further reference to or of postarrest Patterson, defendant’s 414, 466-67, silence is made. 154 (1992).
610 argued N.E.2d 40 Defense counsel to the given voluntarily here that defendant should speak be credit ing to the police. logically After court’s instruction the would conclude willing speak that defendant was to about the incident was not an submitting interested to examina unreliable tion.
Other differences exist between this case and Lewis. A more thor ough given Lewis, instruction was here. we concerned with the “gratuitous, volunteered experienced of an of Lewis, ficer.” (Emphasis original.) App. 269 Ill. 3d at 646 N.E.2d case, the present nothing indicates that was engaged type of response misconduct. answer was a fair to question asked: when during did defendant act interview like sleepy? he was question That by referring be answered to questions being closing then During argument, asked. defense counsel discussed inconsistent statements made defendant and how, when got tired, would say “you “whatever” or know,” instead of saying he did not want talk anymore. to Defense counsel seemed to indicate that sometimes defendant to sleep” “went instead answering question. of If going sleep to device was a avoid answering it important question was to know what was being answered. prosecutor
Lewis stated that a has a duty to tell State witnesses never to mention during testimony. examinations their at 308. That sometimes can be difficult to do. response What should the witness make if defense counsel specifically asks whether requested submit to a polygraph examination? What should the witness make if defense counsel asks prosecutor whether the told the witness not to mention certain facts cross-examination? case,
In this showing because there no was bad faith part witness, an ap because the was stricken and propriate given, instruction showing and because there was no defendant, prejudice substantial the trial not abuse its discretion in denying Patterson, a mistrial. See 154 Ill. 2d N.E.2d at had an argues pistol
Defendant next that the recovered insuf nexus to the counsel was ineffective for ficient offense defense object pistol very admission. testified the failing Cline saw, pistol similar to the one he and other evidence indicated the found in an area to defendant at the time of the offense. Ev accessible relevant; identity admissible if it is in a criminal idence is proved beyond not doubt. items of evidence need be reasonable See 1992). (4th Strong, § J. McCormick on Evidence at 776 ed. When suggests perpetrator possessed weapon that the the time offense, weapon connects similar evidence somehow though into evidence may the defendant be admitted even Lee, weapon identified as the used. Here pistol was relevant because it could I tried to possible question,
answers defendant’s have shoot gun? officer when there was (Pub. Act 88— argues Defendant next Public 88—680 Act (1994 January 1, Ill. Laws 2782- eff. 35— 83)), degree murder of penalties which increased the *6 officer), single subject the rule of the Illinois Constitution violates (I 8(d)). IV, recently has supreme Const. The court ll. issue, holding that Act 88—680 does violate the ruled on this Public 80, 91, 723 single Cervantes, rule. 189 Ill. 2d subject People (1999). 265, 270 is that the trial court its discre argument
Defendant’s final abused The sentence was sentencing years’ imprisonment. tion in him to 80 n withinthe statutory degree murder of range peace officer) 20 years a minimum of as amended Public Act 88— 4(c)(1) (West 1996). of The years. and a maximum 80 ILCS 5/8 — sentencing trial is the forum for and decisions proper Coleman, entitled deference. regard sentencing great (1995). it is claimed 652 N.E.2d Where excessive, statutory is the sentence within limits a sentence it greatly spirit unless variance with should not be disturbed is to the nature of manifestly disproportionate and purpose law Cabrera, 474, 493-94, offense. injured not argued Cline was Although defense counsel not sentence, injured the fact Cline was and a lesser that warranted part effort on the of defendant. and not due providence history of criminal long defendant had The court noted that trial and there convictions, very dangerous person, and his into defendant’s conduct Taking need deterrence. account disproportionate. 80-year sentence not history criminality, of statutorily years, the maximum sentence However, we reduce it to 366(a)(1). of 155 Ill. 2d R. available in view Cervantes. reasons, judgment
For the and sentence the trial foregoing is for issuance court are affirmed as modified the cause remanded judgment an amended sentence. modified; Affirmed cause remanded directions.
GARMAN,J., concurs. MYERSCOUGH, JUSTICE specially concurring: testing Evidence generally inadmissible Jefferson, courts at 62. In ad Illinois. dition, the prosecutor duty had a to tell never to men State witnesses tion examinations. do agree majority’s
I with the belief that to so admonish witnesses is majority difficult. The states:
“That sometimes can be difficult
What
to do.
should
witness
if
specifically
make
defense counsel
whether
asks
defen
requested
dant was
to submit to a
examination? What
response should the witness make if defense counsel asks whether
prosecutor
told the
witness
to mention certain facts
cross-examination?”
Certainly attorney no defense would elicit about a poly- graph refusal; if defense counsel to ask prosecu- whether the tor told the facts, witnesses not to mention certain open he would door to refusal, the admission of that as well as possible sanctions from the court.
However, I agree majority per with the that no rule se exists ban the admission evidence. poly- was responsive statement to defense counsel’s bad shown, faith was not trial did all it could to cure potential prejudice by striking giving appropri- cautionary ate jury. instruction to the
Moreover, Beggs’ statement did not concern an absolute refusal *7 but rather physical described defendant’s condition sta- tion hospital visit. sought Defense counsel establish and ill-being, establish defendant’s cooperativeness condition his with police, and his consistent denial of possession. described a very tired man who falling asleep finally said wasn’t taking interested in a polygraph time, presumably because he directly too tired. This reference does not impinge defendant’s credibility. Nor was this information in elicited contravention of a ruling on motion in limine since no such motion made. admonished as
This was stricken and follows: *** testimony, in Beggs, “Ladies Gentlemen Officer made I’m you know reference to a examination which sure that’s lie detector test.
It is of Illinois that the lie detector tests or the law |j]ury sufficiently to—uh—for a tests reliable be used So, polygraphs, regarding decide issue the case. taking one, refusing to do anything to take tests, proof ability It just not admissible. doesn’t have sufficient Q]ury. as evidence to be assistance Therefore, regarding striking I am Officer statements those in case.” instructing you this unring in fact a bell was The trial court did its best to the bell—if Keene, (1995); rung. See Ranstrom, Buress, (1999); People cannot was so influenced The defendant show Moreover, he did receive a fair trial. the evi prejudiced guilt overwhelming this case de
dence was so “guilt directly be inferred cannot now claim that his This cannot that the trial polygraph testimony.” denying a mistrial. The trial court court abused its discretion jury. no on the prejudicial effect determined that Therefore, specially majority’s I concur in the affirmance. SPRINGFIELD, MILL Plaintiff-Appellee, v. WEST KOKE THE CITY OF al., Defendants-Appellants. et DEVELOPMENT CORPORATION Fourth No. 4—99—0472 District Argued February Opinion April filed 2000. 2000. May Rehearing denied