*1 ILLINOIS, THE THE PEOPLE OF STATE Plaintiff-Appellee, OF MAYS, LARRY DEAN Defendant-Appellant.
Fifth District No. 5—87—0768 Opinion 28, 1989. filed September *2 HOWERTON, J., concurring. specially Appellate
Daniel M. Kirwan and L. Gandy, Janet both State De- Office, Vernon, fender’s appellant. of Mt. Ailing, (Kenneth
Kathleen Attorney, Boyle, State’s of Mt. Vernon R. Norris, Stephen Irish, E. Attorneys and Ellen Eder Appellate all of State’s Office, of counsel), Prosecutor’s for the People. the opinion
JUSTICE GOLDENHERSH delivered court: trial, defendant, After Dean found Larry Mays, guilty was unlawful delivery (Ill. of a controlled Rev. Stat. substance 56½, County ch. and to 12 par. 1401(c)) Jefferson was sentenced cause, In this years’ imprisonment. appeals his conviction. defendant raises issues: whether the trial court following (1) in allowing drug erred into transac tapes alleged evidence Wade, (2) tion between defendant and whether trial court refusing erred to allow witnesses who would present mental testify requiring to Wade’s health and witness Wade to address, reveal his whether trial (3) judge’s street conduct prejudice toward case to so hostility trial indicated defendant’s and re- require defendant as defendant’s conviction reversed (4) manded for a new and the trial court abused its whether in sentencing discretion defendant to an extended-term sentence of affirm in for a part, part, reverse in remand new years. trial. the late
During eavesdrop afternoon of October an of an Mt. with alleged drug Agents conducted transaction in Vernon. agent Department Investigation (DCI) Illinois of Criminal Federal met with Drug (DEA) from the Enforcement Administration an informant for both agencies, prepare to the drug of cocaine from defendant. Prior prearranged purchase purchase, who recovered strip-searched by agents Wade was $50 recording bill 13 cents then fitted with a change. agents to make Wade and four given purchase. device and $350 near mother’s house where the went in a van an area a few place. dropped transaction was take Wade was off blocks the house. way from the residence and walked rest of to the a clear proceeded agents residence returned with later plastic bag containing grams powdery 3.58 a white substance The transaction was recorded audio determined cocaine. tape. *3 drug were concerning
Grand this transaction jury proceedings 20, Bill testified May on 1987. DCI Stanhouse be- Agent conducted arranged him fore the that Wade had informed he had grand jury Agent of cocaine from defendant. Stanhouse testified purchase then DEA DEA was simul- purchase, that he informed as tar” investigation an of the sale of “black her- taneously conducting oin by grand in the Mt. Vernon area. Defendant was indicted 11, 1987, of delivery for unlawful a controlled sub- on June a recording drug stance. He filed motion to suppress ! transaction. motion, Hogue DEA Herman testi- hearing Agent
At the on this into investigation there an Federal ongoing fied that had been in Mt. Wade had mentioned Larry sale of “black tar” heroin Vernon. John Hogue “Corky” defendant was an associate of Agent that on investigation. a Based this Moore, target who was the of Federal Wade, Hogue Fed- Agent information and consent obtained verbal the cocaine eavesdrop on defendant eral authorization denied. suppress The motion to transaction. he had used testified that Agent Stanhouse Special
At from September a informant as confidential Larry Wade $1,075 for the information had paid March 1987. DCI Wade through the infor- paid supplied to the Wade was Department. $60 Wade told and on had called Stanhouse mation obtained defendant. Wade the Mt. of cocaine one-eighth buy him he had set ounce up that 1986, defendant met with area. At 3:15 on p.m. Vernon October DCI, Parker, Agents Stanhouse, Sergeant Townsend Spain, Sergeant with in an Mt. along Agent Hogue, area outside Vernon. device. recording did the actual hookup Townsend Wade Agent in back Agent Special Spain Stanhouse drove van. rode rode in front. Sergeant Hogue with Townsend Parker traveled in their vehicles. The van singularly respective at 17th at 3:45 and Wade stopped p.m., and Perkins approximately at walking then started defendant’s residence. arrived toward Wade p.m. defendant’s home at 3:53 Agents monitoring were Wade in the left home equipment van. Wade at approximately 3:57 Stanhouse him at 3:58 At p.m. walking p.m. approxi- observed mately p.m., agents met with defendant back at 17th Street Perkins. Agent Wade entered the of the van and gave back Spain bag clear with a inside. plastic white substance powdery Spain gave then the plastic bag agents to Stanhouse. Other related basically same facts. drug Wade testified about the He stated alleged buy. also
that he had been convicted Federal offense shoplifting, weapons that had resulted in 18-month sentence, and theft. penitentiary that Wade admitted he had used denied was an drugs, but that he addict. He further testified that on April he had checked himself into a cross-examination, detoxification center. On asked, now, “Where are you living Mr. ob- prosecution’s Wade?” jection grounds was sustained on relevancy. Wade was asked also by defense if he had attorney suicide while in the Jeffer- attempted son County jail in 1986. him- May hang Wade he did explained self the neck bars, with a towel tied cell- around but that his mate, Leroy Hooker, been standing had there feet. holding his that he had “faked” explained get this suicide order to see a judge. also Hooker explained Leroy had been enlisted help him this stage attempt.
Defendant called Leroy Hooker, as first witness Before Jr. *4 began Hooker his testimony, any objection State, before judge the trial stopped summoned counsel into chambers and asked defense attorney why testify. Hooker had been called to counsel Defense that Hooker explained testify would sui- real, cide was in attempt fact which be used to impeach Larry men- go which would to Wade’s credibility on the issue of Wade begin questioning tal Defense counsel was allowed capacity. recessed. and the was then objected jury Hooker. The prosecution suicide at- Hooker argued questioning The State issue. The on a collateral impeachment was tempt impermissible Wade prove that no act was admissible argued single State further agreed The trial judge of a mental defect. incompetent was because Hooker could was a collateral issue. While attempt that the suicide condition, could not be opinion as to Wade’s mental Hooker’s testify act. based on one on the su- proof
Defense counsel was allowed to make offer 1986, Larry on he found May icide Hooker testified that attempt. tied in a towel or from the cell bars with his neck hanging Wade then lifted ground. feet Hooker touching sheet. Wade’s were neck, lowered Wade to take the off Wade’s weight Wade resuscitation. He also noted mouth-to-mouth ground, performed he found him. Hooker at the mouth” when “foaming that Wade was cross-examina- attempt. the suicide On “stage” denied Wade helping and he had that he had known Wade since 1984 tion, Hooker noted that he had some tight, prob- “wasn’t wrapped known Wade always he in days spent jail May lems.” the five with Wade During “in a fearful.” depression, paranoia, he found state Buretz, short George jailer, The stipulated testimony genuine. This testi- attempt to the effect that Wade’s suicide that the suicide was a attempt excluded on the basis was also mony defect, mental issue, prove and while it could be used collateral enough alone was not to do so. the suicide explaining why counsel was defense During closing arguments, explain- In so cross-examination of Wade. angry during he was as to stated, objected “I The prosecution believe that —.” ing, believed, and the was sustained. counsel what con- delivery of a guilty of unlawful The found filed a motion October post-trial trolled substance. post- was held on defendant’s hearing 1987. On November that the trial counsel testified hearing, At the defense trial motion. sigh and heaved a made facial gestures, down his pencil, threw judge defense counsel to a question posed by response that he at stated observed Defense counsel during cross-examination. did. to what response six make an jurors least obvious of aggravating the time for fear that he did not at object stated which elicited question the specific He could not remember situation. that dur- testified judge. prosecutor the trial response by such a
979 focused on Wade, attention was of Larry cross-examination ing court that the for sure say Mr. He testified that he could Wade. alleged. attorney the that the defense things did or did not do Krause Judge among jurors. and saw no reaction nothing heard defense attor- making gestures did not remember described sentencing at the He stated that he rule on the motion ney. hearing. re- the court sentencing hearing
At the on November as a witness to porter supplement at trial was called cross-examination motion. She testified post-trial Judge had asked a attorney question, after defense remem- on the bench. She pen Krause slammed down a or pencil concentrating taking down being bered startled because she was could not cross-examination” that was She underway. “intense to the tell if the reacted to incident her back was this because motion and sen- jury. Judge post-trial Krause denied defendant’s term of 12 years. tenced defendant to an extended trial court erred Defendant’s first issue on is whether the appeal refusing suppress alleged drug in transaction be tapes that the argues tapes tween defendant and Wade. Defendant should State and Federal law enforce suppressed have been because ment statute eavesdropping officials acted circumvent Illinois 1987, 38, (Ill. Rev. Stat. ch. 14—1 et which is more strin par. seq.), gent (18 §2511(2)(c) than the Federal statute U.S.C. eavesdropping maintains DEA carried (1982)). though Defendant that even DCI and collusion, concert, out the in their amounted to taping cooperation thereby making disagree. tape inadmissible. the use of an
The Illinois statute eavesdropping prohibits device to record all or conversation unless eavesdropping part any all to the conversation unless one consents parties party consent or accordance prior judicial authorization obtained in with statu 1987, 38, 2.) Stat. tory (Ill. par. directives. Rev. ch. Federal 14— stringent. eavesdrop may statute is less An be ob eavesdropping color of law where that is a person acting person tained under communication, if has consent party party given prior or one §2511(2)(c) evidence is eavesdrop. (18 (1982).) U.S.C. Where authority of a obtained Federal law enforcement officials under electronic eaves Federal search warrant as the result of obtained re statutory which conforms to Federal constitutional dropping the failure to admissible, notwithstanding the evidence is quirements, (People statute. Fidler eavesdropping with Illinois comply when Federal and 210.) 72 Ill. 3d 391 N.E.2d Even (1979), App. State agents engaged joint are noncom investigatory enterprise, pliance with the eavesdropping Illinois statute does not require sup pression electronically long obtained evidence so as Federal direc tives are followed and there is not collusion among the authorities to evade State law. People (1986), v. Winchell 140 Ill. App. 3d 620; N.E.2d People v. Manna 96 Ill. App. 3d 421 N.E.2d 542.
The eavesdropping in the instant case was carried out by both State agents and Federal who complied law, with Federal but ignored Illinois directives. DEA was conducting ongoing investiga tion in Jefferson County “black tar” heroin. argues of State and Federal officials involved *6 eavesdrop presented differing bases for the obtaining of Federal eavesdropping authorization. We find no discrepancies which would finding warrant a of collusion the agencies. between The fact that co caine was the drug purchased rather than “black tar” heroin is not relevant. The basis on which Federal authorization was obtained was the fact that John defendant was an associate of “Corky” Moore, who was a target of the “black tar” heroin investigation. This infor mation Wade, was from Larry received an obviously reliable inform ant $1,375 who had been at least for paid information he supplied to both DEA and DCI. Wade had already put into motion a drug of buy eighth ounce of cocaine with defendant. We can find no ev idence in the record that leads to the conclusion that there was collu sion between Federal agents and State to circumvent Illinois require ments for The eavesdropping. eavesdropping conducted compliance with Federal law in an ongoing investiga Federal/State Therefore, tion. it was not error for the trial court to refuse to sup press the tapes.
Defendant’s next issue on appeal is whether the trial court erred by denying defendant’s request attempt impeach Larry Wade by refusing present allow defendant to witnesses who would tes- a tify prior attempt suicide Wade. Defendant argues Wade’s suicide fact A suicide attempt genuine. is in- attempt mind, dicative of an irrational and such an outward manifestation of a witness’ mental condition is a valid area of inquiry purposes discounting the of a credibility replies witness. The State that the trial court denied properly request present witnesses who testify attempt, would as to Wade’s suicide as that testimony would constitute on a collateral issue. impeachment case,
In the instant was asked on direct exami Larry Wade May jail nation about an incident in at Jefferson County had a around his neck. Wade hanging where he was found with towel a yet judge. been in five and had not seen jail approximately days “stunt,” a not a real suicide at- According to this incident was him that his at suicide would lead tempt. hoped attempt faked seeing attempted testimony to introduce the judge. Hooker, incident, time Leroy Jr., Wade’s cellmate at the Buretz, a testi- George guard jail, impeach Larry at the mony. The trial sustained the State’s to the admissi- of this men- bility testimony, finding opinion that Hooker’s of Wade’s tal state was based on the of the suicide alone attempt observation However, and found this to after collateral issue. review Hooker, Jr., offer of that Hooker’s proof testimony Leroy we find attempt observations were based on the suicide alone. Hooker testified that he had known since 1984. He stated that he had always “strange known Wade was a and that he “wasn’t guy” That he had wrapped tight. some As to the suicide at- problems.” tempt, hanging Hooker testified that he found his neck from the bars of his cell with his feet Hooker off floor. adminis- tered mouth-to-mouth resuscitation. Buretz’s stipulation have corroborated Hooker’s hanging incident was genuine suicide attempt. Given the fact that the State’s case hinged on Wade’s we find that the trial court testimony, abused its discre- tion in not allowing the to hear Hooker’s or Buretz’s testimony. Buretz’s testimony corroborated a sufficient of Hooker’s part testi- mony and should have been allowed. points State out that this suicide occurred over five
months prior drug transaction in that it question, arguing therefore too remote in time and thus collateral as to mental state. *7 However, the testimony Hooker and Buretz in conjunction with convictions, Wade’s prior drug usage, and informant severely status damaged Further, credibility. Wade’s own admission that this Wade’s was a staged get event to him before a judge drastically undermined his who credibility. Anyone perform such an act could have to lie under oath. The capacity jury should have been allowed to hear all this to weight decide what should to testimony given have been alone, testimony. For this reason the cause re- needs versed and remanded for a trial. importance new Given this to the issue of credibility, we need reach the issue of impeachment as Wade’smental condition.
We move next to the issue defendant denied his whether right to confront cross-examination during because required argues was not to disclose where he lived. Defendant learn- 982
ing Wade’s address would aid in leading defendant to other areas of questioning that would present more complete picture Wade, es- his pecially questionable credibility. The State responds that this issue has been waived because defense counsel withdrew the question did not raise as this an issue in post-trial his motion. agree. witness, court ruled that did not have to reveal his street address when asked to do so by defense counsel. The trial court found that Wade’s revelation that he was in
living Mt. Vernon area was sufficient. Defense counsel chose to withdraw the question rather than its prove relevance to defend ant’s case outside the presence of the As jury. pointed out State, the issue of Wade’s address was not raised in any defend post-trial ant’s motions. In order to preserve an issue for appellate review, it must be raised in a written post-trial motion. (People 176, Enoch 122 Ill. 2d 1124.) N.E.2d In case, the instant there is no issue left for appeal, as defense counsel withdrew the question. Even if waived, the issue had not been we cannot say that it was prejudicial error to sustain the State’s objection. While it is generally accepted a defendant right has a to ask a witness where he resides in order to him identify with his environment (Smith v. Illinois (1968), 129, 131, 390 U.S. 19 L. Ed. 2d 88 S. Ct. 750), if a life witness’ would be due endangered address, revelation of his the witness need not disclose that informa tion. United States v. (7th Palermo 1969), Cir. 472; F.2d United States v. Varelli (7th 1969), Cir. 407 F.2d 750.
The fact that Wade a paid informant to DEA both and DCI unquestionably made him a target those involved in illicit activi- ties. This was dramatized during the trial when the proceedings had in stopped order to look a court spectator who was ob- served “making gestures by curling his extending finger index his— curling fingers other around in the of a shape gun and mov- ing his a trigger thumb as hammer in the direction of the witness as ensued, A testified.” search but the threatener could not be found. The in gesture described is not transcript lost on this court. Wade was obviously danger because of his status as an in- instance, formant. In this the trial court did not abuse its discretion sustaining State’s defense counsel’s re- question questing Wade’s street address.
This leads us to the issue whether during trial judge’s conduct indicated toward defendant to so hostility prejudice require conviction to be reversed and re- defendant, manded for new trial. According cross-exami- *8 pencil, down his Wade, slammed judge nation of the trial to a question gestures response and made facial sigh, heaved a defendant, actions by these According defense counsel. posed by the worst presumed the trial demonstrate that the trial court judge him. agree. of and We unduly prejudiced to con case, judge not the of the province In a criminal it is fact, to determinations of or deed his relative vey by opinions word witnesses, testimony. afforded their weight of and credibility 491.) 24 Ill. 2d 180 N.E.2d (People v. Santucci of trial that cross-examination stated in his motion for a new on the stand and pencil the trial “threw down his judge Defense counsel in the of the displayed anger presence jury.” obvious the exacerbating did not “for fear of situation object at time the blatant dis and to their attention presence jury calling of this court.” This judicial highlights of conduct play improper to timely object State’s contention that the failure of defense counsel agree our consideration of this with the State precludes question. ordi timely objection that in most instances failure to make a however, instances, matter; of the there are narily prohibit review here, such it or wise to presented always practical as is not ob ject rigid application conduct before a Less unjudicial jury. rulings rule and requiring timely proper objection preservation thereon for the is conduct of prevail objection should where the basis the trial 27 Ill. 2d 189 N.E.2d judge. (People Sprinkle (1963), 295.) The court Sprinkle stated: a making objection
“The of an or comments questions It can judge problem a for the trial poses practical lawyer. but, as- prove embarrassing lawyer, importantly, more suming degree that most view most with some juries judges knowledge of law somewhat su- respect, accord to them to that of the before the perior attorneys practicing judge, objects question by judge who to a comment or lawyer suspicion skep- find himself viewed with considerable may he to his group trying ticism the whom is convert very facts, damag- thereby perhaps irreparably client’s view of the object, ap- client’s interests. If he fails to ing may, faced, is, here the claim that his peal, be as defendant with error, and it is failure to act has consideration precluded that the say to this situation to always sufficient answer hearing ruling can made and secured outside It the trial upon incumbent jury. particularly regarding, in his comments or higher degree exercise a of care in in order to avoid of, witnesses before interrogations extent, and we therefore hold that fluencing jurors any rigid application requiring timely proper a less of the rule *9 rulings prevail thereon should objection preservation the trial where the basis for the conduct of the 400-01, than is 27 Ill. 2d at judge required.” otherwise N.E.2d at 297. counsel de- hearing
At the on the motion for a new defense to a by response the acts he witnessed the trial scribed asked him cross-examination. Defense counsel question by during stated that at least six took note of the court’s action and jurors made an to the court’s actions. The at- response prosecuting obvious hearing. During also testified at cross-examination of torney Wade, he at the closest to Mr. and his atten- was seated table tion was focused on Wade. He could neither confirm nor the de- deny allegations pencil-slamming fense about the incident. On attorney’s date, later the court for the which the inci- reporter proceedings dent took testified her recollection of the event. allegedly place The is her of what following transpired: estimation cross-examination,
“Q. anything what if unusual During the court do? did observe you remember, that I and the reason I thing only
A. The only it it at this time it startled happened, remember is because cross-examination, me, I remember out the the [sic] I peripheral my eye, Judge putting vision remember indication on the (Physical by witness.) pencil down I something, desk or or assume it was a or pen pen pencil. but Q. down, say put you When do mean slam down? you A. I would say yes. that’s— Q. slip (Physical It was not an inadvertent indication was it? Attorney McHaney.), it indication (Physical
A. Not like that. When came down wasn’t—the witness.), pencil it was in the hand with—it a hand indi- (Physical didn’t itself. It came down with drop by witness.). cation after the that occurred
Q. immediately Do recall that you hide the of co- you eightball where did to Mr. question the porch? caine? On of where it happened.
A. That’s recollection my Q. back to the your jury? Was A, the is over here and the jury I Courtroom A. sit-in stand, was a on the I I there witness facing, because way court more towards the angled was turned more towards the— I table and would be Defense Counsel with—where towards had a of the far extension of the peripheral jury vision court, know, out of the then I could see the witness you comer of my eye.
Q. have had to turned jury, you To view the have head, your you? wouldn’t Well,
A. with the of the tail end of Right. exception described, as I the far of the not the closest jury, end end me but the farthest I could see them out point away. vision, me, peripheral but see the ones behind I would have had to turned head.” my Krause
Judge stated that had no recollection of such events. that he experienced respiratory problems mentioned sometimes which through mouth, him to act that inter- might forced breath an by some as preted sighing. enlightening most in our mind is reporter,
court courtroom observer and experienced an unbiased *10 The fact that the judge’s actions, witness. she was startled by espe in the cross-examination,” midst of some “rather cially heavy leads us that to believe the trial court acted It improperly. is apparent us the jury that could infer from this that the judge believed Wade that the taking cross-examination that place was should not be given consideration.
Finally, during closing argument defense counsel explaining was he why angry was while cross-examining Wade. De stated, counsel fense “There I anger. Because that —.” believed The State objected what defense counsel believed and the trial court sustained the that objection. argues Defendant this effec ruling tively stymied allowing defendant’s case not counsel to pursue what perhaps argument. an Because important defense counsel complete sentence, could not way we have no to know what upon going defense counsel was If express opinion. an is prosecutor to express argument allowed an opinion closing based on facts in v. (People (1982), App. evidence Jones 108 Ill. 3d 439 clearly N.E.2d 1018), attorney defense should lati have such Even though exactly tude. we will never what the at know defense had torney planned ruling we find the say, premature. court’s conclude the actions of the trial complained here were They did not constitute error. unnecessary. harmless may have prejudiced eyes been some or possibly the jurors, all of cause must be remanded a new trial. contention address defendant’s this we need not ruling, Because of sentencing that the trial court its discretion abused 12 years. an extended term of reasons, judgment
For the this court reverses foregoing and remands for a new trial. County the circuit court of Jefferson Reversed and remanded.
LEWIS, J., concurs. HOWERTON, specially concurring:
JUSTICE defendant’s thwarted I address the issue raised only he found Hooker’s Leroy testimony to introduce off with his feet neck from the bars of his cell hanging resuscitation, and that mouth-to-mouth gave floor and that “strange wrapped tight.” and “wasn’t guy” Wade was a for a purpose. was offered dual testimony Hooker’s testimony by showing impeach was to Wade’s purpose The first condition, the inference that thereby raising that he had a mental he testi of the events about which and memories perceptions lay opinion subject is a capacity proper Mental faulty. fied were for this not admissible However, testimony was Hooker’s testimony. as opinion give witness can lay reasons: firstly, for two purpose in sufficient detail after facts stating only to mental condition in question condition of the person of the mental knowledge show E. 961; Cleary see 273 Ill. N.E. (1916), (Walker Struthers ed. §704.3, (3d at 379 of Illinois Evidence Graham, Handbook & M. to credibil condition is not relevant mental 1979)); secondly, from the events about which remote in time if it is too ity 726, 506 N.E.2d 3d App. 153 Ill. v. Helton given. (People tight” do being “wrapped case, “strange 307.) guy” In this about Wade’s Furthermore, testifying Hooker was facts. not state which Wade events about months five before mental condition *11 would have Hooker’s observations this is too remote. testifying; of his the formation perceptions time of Wade’s to relate to the v. People Helton relevant. in order events memory 307. 726, 506 N.E.2d 153 Ill. 3d App. however, for its second admissible, pur- testimony Hooker’s lied on the witness that Wade inference to raise an namely, pose, that his suicide at- he testified examination when on direct stand That portion of a judge. him in front get “stunt” to a tempt hanging by he found Wade he stated wherein Hooker’s life by he saved ground with his feet off of the and that neck contradicts Wade administering directly mouth-to-mouth resuscitation therefore, is not collat- case, on matter into the injected and is credibility eral. That contradiction attacks Wade’s admissible. I otherwise concur. ILLINOIS, Plaintiff-Appellee,
THE PEOPLE THE STATE OF OF ERNEST, Defendant-Appellant. D. STANTON Fifth District No. 5—87—0660 29, 1989. Opinion September filed