*1 ILLINOIS, THE Plаintiff-Appellee, PEOPLE OF THE STATE OF v. JOSEPH ROGERS, Defendant-Appellant. (3rd Division)
First District No. 1 — 88—3453 Opinion filed December 1992.
GREIMAN, P.J., specially concurring. (Lisa Defender, Fry, Rog- Chicago Rita A. Public Ottenfeld and Vicki ers, Defenders, counsel), appellant. Assistant Public for (Renee O’Malley, Attorney, Chicago Jack State’s Goldfarb and Laurie Feldman, counsel), Attorneys, People. N. Assistant State’s for the opinion JUSTICE TULLY delivered of the court: Rogers Joseph After was convicted of degree murder, attempted aggravated battery, first and armed (111. pars. violence. Rev. Stat. ch. De- 33A— 8— 12— years’ imprisonment fendant was sentenced аttempted first degree appeals judgment murder. Defendant of conviction. We affirm. presented following
The State On sequence of events at trial: September Chicago police department Ke- detectives Thomas ough, Duffy, single-story John Michael McDermott went Crandon, Chicago, home of Patricia Jackson at 10353 South Illinois. Keough rang 14-year-old nephew, the doorbell and Jackson’s Steven *3 Cannon, house, who in approxi- also lived the answered the door at mately p.m. Keough 12:30 identified himself and asked Cannon if the residence, yes. Keough house was the Jackson to which Cannon said police looking told the were Cannon that for defendant. Cannon then in, Keough invited and a McDermott led them to rear bedroom and pointed sleeping out the defendant. bedroom, lying
In a the the detectives saw defendant under blan- pulled up eye ket to his level his hands. It which was and covered detectives, point joined by Duffy, was at this the two now first drew guns, po- their awakened defendant and identified themselves. The room, him, brought him dining lice defendant into the handcuffed sat table, rights, at a him him that he informed of his Miranda and told being Page. was arrested for the of Antoine Defendant rights agreed police. indicated he understood his and to talk with the police directly the took defendant approximately p.m., At 12:45 placed and police from the Jackson residence to the Area Two station room, ring him in an to a on the wall. At 3:15 interview handcuffed the Duffy Attorney Don Jonker went into p.m., and Assistant State’s defendant, room, and sat him at a table. Jonker interview uncuffed Attorney and an assistant State’s himself to defendant as identified he rights. Defendant indicated of his informed defendant interview, defen- During or rights. the 15- 20-minute understood that he did never stated gave only dant an oral statement. Defendant phone speak call to a or wish talk that he wanted to make not to or attorney. an At the following the occurred:
The defendant contends and at chest residence, pointed gun a Cannon’s Jackson a detective answered, officers, Cannon asked where defendant was. After get defendant. to back room to permission, without went po- Furthermore, but to allow Cannon believed he had no choice watching television was in back bedroom entry. lice Defendant door, it, opened heard knock at the with door locked. Defendant came in the and saw detectives. Two of the three detectives the three head. The third detective pointed guns at defendant’s room and handcuffed defendant. room, dining police
In was under told defendant he that, house, given arrest. contends while in the he was Defendant However, warnings why Miranda or told he was under arrest. did, fact, give his Mi- police Cannon testified that defendant warnings. "slight point randa It was at this that defendant had Duffy. conversation” with then, defendant, according
The took him to the fourth police station, policе Two where police district station and then to the Area they placed him and him to the wall. At in various rooms handcuffed who, Duffy only in the p.m., 3:15 came into the room with Jonker defendant, warnings to questioning midst of read the Miranda defen- if telephone make a call to a dant. Defendant asked Jonker he could lawyer. telephone that he could make the call Jonker told defendant only questioning and defen- after the interview done continued dant. quash moved to his warrantless arrest
Before statements, subsequent contending such statements suppress and illegal of an arrest and made absent Miranda were tainted fruit warnings. police guns did not have trial court found that door; drawn at the Jackson residence when Cannon answered sufficiently capable mature and streetwise to be Cannon was had, fact, consenting entry po- consented to the police authority; merely police entry, acquiescing lice rather than *4 him out to them. pointed Cannon led the detectives to defendant and to Accordingly, quash the motion arrest. trial court denied Duffy gave and Jonker both trial court further found him, and he warnings prior interviewing to defendant Miranda warnings rights. understood The court these and chose to waive Therefore, request attorney. found that defendant did not an suppress subsequent court denied the arrest. motion to statements to a pretrial Defendant made four additional motions. The first was complainant Page’s alleged gang motion to allow evidence granted gang affiliation. The court extent the motion to the complaining affiliation related to interaction of the witness and de- Page’s alleged fendant. The second motion was to allow drug usage. granted drug usage, sales and This motion was to but Thus, denied as permitted bring to sales. defendant would be to out specific Page allegedly giving instance of defendant cocaine to sell. The third was a motion in keep limine to out evidence of extra- question report indictment crimes. a police The evidence defendant, allegedly just which contained a statement made before allegedly shooting Page, just somebody:” that "I have killed The mo- limiting tion was then a denied. Defendant asked the trial court for instruction. The trial court indicated it would consider an instruction if and when such evidence came in. Thе fourth motion was exclude prior voluntary manslaughter. conviction for The trial court denied this motion. following chronology
At presented State September leading up events of of Antoine Page: night a.m., On the in question, Page at about 3 received a phone arranged party Page call from friend who had and invited house, later, away. to come to his which was two A blocks short time Page began gunshots. walk to the friend’s house and heard Two later, Page running housing project minutes saw defendant from a Page recognized a prairie into area across the street. defendant as a neighborhood acquaintance. "Joe, defendant,
Page initially called to come here.” Defendant running Page. Standing approached continued but then two feet Page, just that he had stated shot someone and threatened, my going you name and I’m to shoot now.” "You called Page Page was unarmed and no one else was in the area. told defen- quit playing Page dant to around. Defendant drew closer to and then shot him in the face. friend, Mark
Page couple ran a of houses down to the home of Page point, Jones. knocked оn the door but no one answered. At this over, bleeding and nose. He then felt was bent from the mouth object, a blow to back of his head from a hard sensed someone him, looking gangway, ran into a behind and heard a click. back, running away. saw defendant Later, his mother that he had been shot.
Page ran home and told *5 Page was shot him. had that defendant Page police told removed bullet was a .22 caliber eventually hospital taken to a where cavity. his from left nasal leading up following sequence of events presented the
Defendant gang "El street Page: joined the Rukn” to the of Defendant defen- point on gang in 1984. From quit in 1980 or 1981. He neighborhood gang, street dant was harassed the "Vice Lords” Jones, McCahey, and two affiliate, Page, Othen specifically El Rukn "Shabaz.” known as "Chico” and other individuals matter, was defendant On in an unrelated February was released manslaughter. After voluntary defendant convicted of 1986, and announced prison Page came to defendant’s house from while family the El Rukns "protected” he had expected that he to Page told defendant defendant incarcerated. 1987, 1, Page defen- told September On paid protection. be for for pаckets some cocaine dant that he wanted defendant to sell Page obligation to for payment him as a final on defendant’s protecting family. on approximately September
Defendant at 2 a.m. testified that Fifi, who he call from a woman named telephone received boyfriend arguing him and wanted told that she had been with her to up. to Defendant went Fifi’s resi- pick defendant come and her answered, dence, times, rang the several to which no one doorbell and then decided to return home. Jones, Chico, home, way Page, and another
On his defendant saw defendant, Page but defen- person sitting in an called to automobile. his and saw walking. over shoulder dant continued Defendant looked get ran to the four out the car. Defendant then individuals Later, Page and Jones found housing project Trumbull Park and hid. handgun pointed at the un- Page had a rifle and had a him. Jones money argued over the armed defendant’s chest. and defendant Page’s selling cocaine. was to have collected for defendant away. to prairie ordered into a five feet Defendant refused ground struggled Page. The fell and over move and kicked twо to Page’s gun. gun away. ran went off and defendant guilty attempted degree
At first found defendant murder, aggravated battery, and armed violence. The trial court degree guilty attempted murder. entered a verdict of first over, sentencing, defendant was After the trial was but before Fisher, Gary being jail transported to the courthouse from with gang Disciples,” a street "The rival Vice member of called Page, Page was a knew knew Lords. Fisher told defendant that he Lord, willing testify Subsequently, that fact. Fisher Vice and was to trial, Page
executed an affidavit to that effect. At denied that he was or gang. ever had been a of a member
We first turn to defendant’s contention that trial court erred in denying his quash suppress motion to his arrest statements resulting arrest, violating rights from such thus under the fourth I, amendment of the United States Constitution and article sections 2 (U.S. Const., IV; of the Illinois Constitution. amend. HI. Const. I, art. In order to decide whether defendant’s arrest §§ and the proper, statements derived from it were we must review the finding court’s capable consenting Cannon was to the police’s entering the Jackson residence. Defendant contends that 14- year-old capable consenting Cannon was police search but bowing police pressure instead was authority. or principle
We start from the
that a trial court’s determination
that a search was consensual is a factual matter entitled to deference
*6
upon
by
review
this court. Where the
on
in
evidence
the issue is
conflict,
reviewing
a
accept
finding
court will
the
of
trial
the
court
clearly
(1974),
unless it is
(People
unreasonable.
v. DeMorrow
59 Ill.
1.)
352,
2d
320 N.E.2d
The burden
in
carry
the State had to
this
instance
prove by
preponderance
was to
a
of the evidence that
in
light
totality
circumstances,
оf the
of
voluntarily
the
Cannon
allowed
the
(People
detectives
enter the Jackson residence.
v. Branham
1226.)
(1985),
896,
App.
137 Ill.
3d
per
484 N.E.2d
There is no
se rule
precludes
a
giving
minor child from
by
consent to a search
the
age
police;
alone is not an
capacity
automatic barrier to
to consent.
Age
court;
is but one factor
by
considered
a
others are: the time of
intrusion;
the
whether there was some initial refusal or resistance to
search;
knowledge
and whether the minor had
right
of a
to re-
(1978),
People Swansey
1015,
fuse.
App.
3d
We now examine the issue of whether the trial court erred allowing into evi post-arrest the admission of defendant’s statements post-arrest Assuming, arguendo, dence. that defendant’s statements tainted, irrelevant, as such statements were were it is nevertheless
747 chief, in rebuttal but rather in its by introduced the State not case in violation of obtained purpose impeachment. of Evidence for is amendment, not long so such evidence or the fourth Miranda inconsistent coerced, previous properly can admitted to rebut be guаranteed protections testimony of The constitutional a defendant. "perverted into a by be the fourth amendment and Miranda cannot defense, risk of by way a free from the perjury license to use of (Harris Newv. prior confrontation with inconsistent utterances.” 646.) 1, 5, 643, (1971), 91 Ct. York L. Ed. 2d S. 401 U.S. 28 Furthermore, jury statements that such court instructed deciding to be weight only purpose could be considered for the given testimony. Consequently, the State’s introduction impeachment purposes in rebuttal for statements improper. allowing urges erred Defendant next the trial court argues that testimony of extra-indictment into evidence. He offenses testimony unfairly error was prejudiced such him and that give limiting compounded by trial court’s failure to illustrate, instruction. Statements made which acts, are explain, interpret by way or criminal which collateral the defendant is interwoven with the criminal transaction being tried, which underlying part gestae are admissible as of the res they even if criminal transaction. Such statements are admissible suggest prej- prejudicial tend to outside crimes of the defendant. probative is a outweighing udicial effect such value de- (People cision within trial court. v. Calcaterra the discretion Ill. U.S. 2d cert. denied 65; Ill. People 17 L. Ed. 2d 87 Ct. v. Glover S. directly doctrine is gestae We believe the res regarding another applicable to defendant’s statements shooting. *7 about another
The fact that defendant made statements fact, highly probative in Page, regardless of their basis is shooting to mind, in in this placed which the defense issue of defendant’s state of Moreover, these theory of accident or self-defense. case under the need another and defendant’s to shoot statements about defen an intent of defendant to shoot and demonstrate Therefore, we find that the court dant’s initiation of the conflict. denying in the admitting did not commit error these statements motion in limine. "other
Additionally, note evidence at issue was not we that the therefore, and, find a suggests, we crimes” evidence as defendant tendered to the limiting jury need not have been instruction regard. and, thus, by in this no committed the trial court error was 748 argument
We next turn defendant’s that the trial court abused its allowing testimony impeached by discretion in to be prior voluntary manslaughter conviction. Defendant contends the probative outweighed by prejudice conviction’s value was unfair its to him. Additionally, defendant contends that the trial court exacer- perceived allowing bated this in error the circumstances of the conviction. Section 6 of "An Act to revise the law in relation to crim- (111. 1) jurisprudence” 1987, 38, inal par. provides, Rev. Stat. ch. 155— in pertinent part: criminal person disqualified any "No shall be as witness *** by having
case any reason of his or her been convicted *** crime; may but purpose such conviction be shown for the affecting credibility the of the witness.” appellate 788, The in People App. court v. Hall 117 Ill. 453 1327, 1228, N.E.2d сert. denied 467 U.S. 81 L. Ed. 2d S. Ct. outlined the abuse discretion standard set forth the Supreme Illinois in People Montgomery Court v. 47 Ill. 2d as follows: [citation], People Montgomery supreme "In the court held that may prior impeachment convictions be admitted for (1) purposes prior at the trial court’s discretion if the offense was punishable by imprisonment year in excess of one or involved dis (2) honesty, and if either the conviction or release from confine years. preceding Montgomery ment occurred within the met, prerequisites court further stated once the first two are prejudiсial prior the court must then balance the effect of the jury against probative guide conviction on the value. As a balancing process, Montgomery suggested court (1) (2) crime; following factors be considered: nature of the (3) crime; prior subsequent nearness or remoteness of the (4) person; career of the crime and whether was similar Hall, charged.” one 3d at 798. hand, prerequisites Montgomery
In the case at initial met, i.e., voluntary manslaughter prior have been conviction was (111. punishable by imprisonment year in excess of one Rev. Stat. 2) 38, par. both the сonviction and the release ch. 9— testimony preceding years. Consequently, occurred within the regarding prior voluntary manslaughter conviction was admissi substantially outweighed by probative ble unless its value was Thus, danger apply Montgomery’s prejudice. of unfair we must now remaining four factors. that a
The first is the nature of the crime. It has been held factor is manslaughter against prior conviction for introduced credibility of his directly bears on the not an abuse of discretion and *8 v. Evans killing. (People for justification his supporting We believe (1981), N.E.2d 3d App. 92 Ill. credibility his very of probative is prеvious conviction of and the defenses in this case given the nature of the offense by forward defendant. put accident and self-defense "It is of the crime. is or remoteness The second factor nearness neg arrest reflects recency release and well established that between turn, rehabilitated, and, in atively being of on defendant’s likelihood 799.) Here, it (Hall, at credibility.” his 3d impacts on to the only year from defendant’s release approximately was one of period short a Page. opinion, In this time of the of our credibility. impacts on clearly time of a defendant. career subsequent The third is that of the factor another, relevant, hand, way or In one the case at factor is release time between defendant’s relatively period short due shooting. until prison the time is a defendant was convicted The fourth factor whether the crime similarity charged. between the was similar to the one While the factor, weighed it properly two crimes is a we believe the trial court More- prejudice and found the to exclude the evidence. insufficient over, tendering for compensated the trial court’s of a instruсtion any might prejudice which have occurred in absence. perceive defendant’s mo-
We
no error in the trial court’s denial of
voluntary manslaughter.
tion
We
prior
to exclude his
conviction
further find that defendant waived his contention that the trial court
allowing
of his
erred in not
into evidence
the circumstances
"and,
failing
by
post-trial
conviction
raise it
in his
motion
therefore,
urged
[grounds]
for reversal on review.”
it cannot be
453, cert. denied
Young
128 Ill. 2d
People
Ed.
110 S.
3290.
497 U.S.
111 L.
Ct.
argument
by
appeal is that
The next
advanced
defendant on
alleg
declining
grant
him a new trial based оn
trial court erred in
by denying
newly
perjured himself
edly
discovered evidence that
urges
newly
evi
membership.
discovered
gang
Defendant
dence,
affidavit,
whether
Fisher’s
is material
to the issue of
aggressor.
v. Baker
frequently
opinion
People
In the
cited
Supreme Court
16 Ill. 2d
the Illinois
succinctly
reviewing
criteria to be considered
summarized the
stated:
denial of a motion for a new trial. The court there
court’s
newly
ground evi-
"A
a new trial on the
discovered
motion for
judge and denial
of the trial
dence is addressed to
discretion
of a
upon
be
review in the absence
therеof will not
disturbed
To
a new
showing
warrant
[Citation.]
of an abuse of discretion.
character that
the new evidence must be of such conclusive
retrial,
probably change
it will
that it must be mate
the result on
cumulative,
merely
rial
it must have
to the issue but not
and that
been
it
discovered since the trial and be of such character
prior
could
not have been discovered
to trial
the exercise
Baker,
diligence.
due
Defendant next claims that he was denied a fair trial when evi- allegedly theory by dence relevant to his of defense was excluded assigns having trial court. Defendant error to the trial court (1) precluded him presenting two lines of evidence: evidence by Page allegedly gang threats made and members which other fellow and, Page’s aggressive would establish and violent character (2) him; Jones, consequently, and defendant’s fear of evidence courthouse, Rogers, while threatened Frank brother, testify that should he at defendant’s Jones would shoot begin by noting him. We our discussion of this issue it is party present established law that each is entitled to evidence rele- theory Molsby vant to his v. 3d (People case. However, it is also settled law that: may reject grounds "A trial court offered evidence on of irrele- remoteness, vancy probative if it little value due to its has uncertainty possibly prejudicial unfair nature. [Citations.] or its The admission of evidence is within the sound discretion of the court, ruling should not be reversed absent a clear and its showing People that discretion.” of abuse of Ward 443, 455-56, N.E.2d 696. Ill. reviewing present light
In case in of the above-mentioned by with principles, we find no of discretion the trial court abuse excluded regard properly to his first line of evidence. The trial court fact, In reveals that defendant only irrelevant evidence. record alleged Page’s at trial to evidence permitted to call witnesses addition, aggression and towards defendant. In gang membership thoroughly and re-cross-examined defense counsel cross-examined suggestion Page along Additionally, we find defendant’s this line. gang present to evidence of permitted that he should have been mind, involving Page, violence not relevant to defendant’s state untenable. Such would have been too remote to be relevant. alleged argument regard
We find to Jones’ with against unconvincing. threats defendant’s brother also Defendant’s argument Page, although is that the threat did not come from him, showing threat can be attributed thus "consciousnеss guilt” if he disapprove oppose did not of or the act. As the trial court stated, Page alleged if even stood next to Jones while Jones made the threat, this nothing demonstrates more about than mere presence. Furthermore, given diiFering actually versions what occurred, just it would take a side trial to determine the satellite alleged Accordingly, issues raised occurrence. the trial court correctly found this evidence to be too attenuated to be admissible properly excluded it.
We next consider defendant’s assertion that the trial court abusеd by refusing discretion three of defendant’s tendered (1) (2) following instructions shooting; three areas: accidental (3) victim; intoxication of limiting consideration of defen- dant’s regarding statements extra-indictment offenses as "other crimes” evidence. We note already disposed that we have argument regarding "other crimes” evidence in the context of our discussion of Additionally, extra-indictment offenses above. as de- *10 fendant failed to regarding include his claim of alleged error the Page intoxication of at the post-trial motion, scene of the crime in his (1988), it is (People 176, 186, deemed waived. v. Enoch 122 Ill. 2d 522 N.E.2d cert. denied 488 U.S. 102 L. Ed. 2d 109 274.) Thus, S. Ct. only we need examine defendant’s contention with regard to the trial shooting court’s refusal of the accidental instruction.
An instruction on accident inappropriate jury is where a is on instructed the elements of the crime and that the State has the responsibility proving of (People defendant’s mens rea. Spaulding v. 469.) Here, 3d 368 N.E.2d the trial court jury instructed the on knowledge the mental states of intent and nec essary to find guilty first-degree murder, defendant attempt, of battery, aggravated battery, and armed violence as well as the State’s Thus, definition, burden proof. of jury the could not have found guilty had it determined that the of was the accident, result of an necessarily as he possess requisite would the facts, mens rea. Under these an instruction on accident would have and, unnecessary, therefore, been trial court correctly the refused the instruction. next prove
Defendant submits that the State failed to him 752 the rec- a careful review of beyond a doubt. After
guilty reasonable jury ord, the which ample we believe that there is Rogers Antoine without have shot Joseph could concluded of the vеrsion provocation. jury choose to believe State’s serious different, is quite it the shooting. story is While defendant’s credibility witnesses and of to determine the function (1960), 18 Ill. 2d (People Jordan resolve conflicts.
296.) finding guilt only where the of A will disturb court review unsatisfactory unreasonable, or as improbable, so evidence is guilt. (People v. Crews of a defendant’s justify a reasonable doubt case, the evi- In instant Ill. guilt. no of defendant’s dence leaves reasonable doubt that, aggregate, the errors argues Finally, defendant above, However, we have shown assigned by require him reversаl. therefore, substance; it follows individually lack defendant’s claims collectively they cannot have force. foregoing, judgment the circuit court light of In County Cook is affirmed.
Affirmed.
RIZZI, J., concurs. GREIMAN, specially concurring:
PRESIDING JUSTICE again "Count Res vampire, every now Like an entombed begins circulate his coffin and Gestae” moves the cover of they longer no judges, them litigators promising world of analysis explanations appropriate or provide must rational Instead, they only "res need mutter hearsay rule. exceptions to the a multitude of sins. gestae” to cover describe words
Traditionally,
phrase
gestae” was used to
"res
murder,
fact,
key litigated
such as the
accompanied
which
subject of the
specific
was the
or
occurrence which
collision
other
accompanying
However,
grew
words
term
to allow
use
action.
Strong, Mc-
into
2 J.
admitted
evidence.
any relevant act or condition
(4th
1992).
268, at 207
ed.
Cormick on Evidence §
criticized
years, every major commentator has
During
the last
Strong,
imprecision. E.g.,
J.
gestae
the notion of res
because
*11
(4th
Graham,
1992);
268,
M.
ed.
at 206-08
McCormick on Evidence §
(4th
803.2, at 549
of Illinois Evidence §
& Graham’s Handbook
Cleary
(Chadbourn
1745,
rev.
at
1984);
191-93
Wigmore, Evidenсe §
ed.
6 J.
Utterances Admissible
1976); Morgan,
Suggested
A
ed.
Classification (1922).
Gestae, 31 Yale L.J. 229
as Res
in
years ago
more than 30
supreme
rejected
gestae
Our
court
res
(See
N.E.2d 804.
also
People v. Poland
22 Ill. 2d
Comm’n
Division,
v. Industrial
Corp.
Clutch
Borg-Warner
Rockford
most recent
and this court’s
37 Ill. 2d
224 N.E.2d
(1990), 202 Ill.
Country
comment
Club
Kellman v. Twin Orchard
that reliance
App. 3d
The Poland court believed
understanding
upon
concept
this
failed to contribute
to an
analysis.
problems
hearsay
any
reasonable
further
inhibited
Poland,
concluded that: "At defense counsel did not invoke rule, exception hearsay relying the excited utterance instead general, disapproved, gestae concept.” (Emphasis on the more res added.)
Despite gestae, decades of uniform criticism of the use of res majority gestae vampire has elected to let the res out of its coffin.
I hope concurring opinion equivalent would can be the of a may stake in the heart of be gestae res and that the coffin lid securely fastened.
Otherwise, I concur in the result. ILLINOIS, THE Plaintiff-Appellee, PEOPLE OF THE STATE OF v. HOW- BELL, Defendant-Appellant. ARD R. (3rd Division)
First District No. 1 — 89—1372 24, 1993. Opinion February filed