*1 what was unable to do an able trial judge experienced and under the cross-examination do. circumstances were deprive so prejudicial impeachment of a fair trial. defendant the evidence does finally contends The conten- a reasonable doubt. him beyond
prove the record contains sufficient is without merit since tion is reluctant the conviction. This court evidence to sustain evidence but by to reverse judgment ample supported of the inflammatory our admission opinion of his adduced in Allen impeaching deprived to a a fair jury. constitutional impartial right of the circuit court For reasons stated judgment new remanded and the cause Cook reversed County trial. and remanded.
Reversed (No. 42480. ILLINOIS,
THE THE PEOPLE OF STATE OF Appellee, STEPTORE, v. IKE Appellant. March
Opinion filed *2 RYAN, J., dissenting. GETTY, Defender,
GERALD W. Public of Chicago CAHILL, DOHERTY and B. (MARY JAMES J. JAMES HADDAD, Defenders, Assistant Public of counsel) appellant. of SCOTT, General, WILLIAM Attorney Spring- J.
field, and HANRAHAN, of EDWARD V. Attorney, State’s ZAGEL, General, B. Assistant Chicago (JAMES Attorney and ROBERT A. NOVELEE and L. MICHAEL GOLD- STEIN, Assistant of for the State’s Attorneys, counsel), People.
MR. GOLDENHERSH delivered the opinion JUSTICE of the court:
Defendant, Ike found a guilty by Steptore, the circuit court of Cook offense County robbery and to a sentenced term of 15 to in the 20 years penitentiary.
Defendant was indicted with four other along persons for the offenses of and murder but motion for robbery, a severance was and he was tried granted separately. time of the murder At the found charge.
trial, old had no criminal defendant was 16 years prior record. P.M., Fire Chicago at 10:57
On July a fire at received a 1411 South Department report address, Keeler. In the at that bedroom dwelling firemen found the remains of Marie Smrz. occupant, The witnesses who the fire for the State investigated P.M., testified that the fire had started about 10:45 been been used, an been and the had accelerant had blaze a confined to the had found drawers of They bedroom. dresser in the a drawer room dining opened jewelry out. pulled defendant,
Willie friend testified that McLaughlin, named Walter defendant, boy at 9:30 that about evening, and he had door house entered back of Mrs. Smrz’ the door. While the kicking glass unlocking kitchen, witness and defendant remained in the Walter *3 he searched the house. admitted took clock McLaughlin radio, the left house. then several and trio the met They other Willie Coleman. boys, including defendant that,
Coleman testified after and meeting others, friend, the he left the and his Delores girl Johnson, from which area, and went to a back together yard group Both could see the back house. Mrs. Smrz’ they porch defend- and testified that saw Coleman Miss they Johnson back One ant and four other on Mrs. boys Smrz’ porch. door, in the house. A few kicked the and entered boy they later and one other Robert minutes defendant boy, Dismukes, left went down the the house and stairs leading from the back Defendant was carrying piece porch. on still the cake. Another Walter boy, Montgomery, near the back door. Dismukes called up porch, “it it.” Mont- about ain’t worth something Montgomery defendant house, then reentered but gomery minutes later they Dismukes remained outside. About 15 the other two leave the saw house. boys Montgomery he heard home, where then went Coleman Dismukes’ He further was on fire. the news that Mrs. Smrz’ house home at that defendant was not at Dismukes’ testified that time. but state- written, unsigned
A question-and-answer, ment defendant to the given by Chicago police admitted into evidence. he Defendant said that had gone into the house with and two Dismukes Montgomery, others, and, while the other four searched for boys money, he took a of cake from the with piece left refrigerator Dismukes. About 15 minutes later other left, and boys defendant then noticed the house was burning.
Robert Dismukes and his sister on testified behalf of that defendant was at Dismukes’ home from 5:30 P.M. to on the 10:30 P.M. approximately evening Defendant took the question. stand and testified to same alibi. In Dismukes, rebuttal an assistant State’s testified that had told Attorney Dismukes him defendant and Dismukes were in Mrs. Smrz’ house just to the fire. prior initially contends was denied his to a
right because the trial denial of speedy court’s petition discharge section 103—5 of the pursuant Code of Criminal Procedure, hereafter referred to rule. 120-day 1967, 38, ch. (Ill.Rev.Stat. par. 5.) 103 — Defendant was taken into 30, 1968. On custody July 25, November 1968, court motion State’s granted for an extension term to 5, December 120-day ch. (Ill.Rev.Stat. On par. 5(c).) 103 — November 25, defendant filed a written petition under discharge rule, 120-day alleging petition to December, 6th “prior 1968, more day than *4 120 have days without his been passed having brought trial without on his any delay part.”
On 5, defendant, December whose case had not at time been severed from that of co-indictees, his four in court for trial. appeared two the other Although were not for trial because defendants pending prepared defendant and the announced motions, ready both People venire P.M., of the for trial. At 4:30 approximately were were into and after sworn called box being at the follow- dismissed with instructions to return 12:30 before afternoon. The record shows immediately ing were called and defendant’s attorney sworn jurors the venire certain moved because orally discharge while defendant’s them had been in the courtroom another had been in the defense of attorney engaged defendant, in a not in any way with case charged rape, on court, related to without any this one. The ruling to the motions, continued the matter for further hearing next December 6. day, 6, December the motion to
On Friday, discharge venire was allowed and the discharge pursuant petition to the to Monday, rule was continued 120-day hearing 9, December in order to allow the State time answer petition. members
Defendant that the the 12 argues calling toll the of the venire on December 5 did not serve to there at time term because fact 120-day which another trial in before the same trial judge, progress trial was not until December 6. completed no examination contends that because voir dire or 6 the either on December 5 December commenced within the extended did period. begin 1968, 6, that on December
The record shows the case recites that entered an order which circuit court on the Motion for a the court hearing before “coming *** the court the Venire heretofore selected to Discharge *** *** *** said motion motion and doth allow said *** *** held on this cause is hereby allowed hereby record for December 1968.” Subsequently call until “continued the case be an order reflects to the written answer 1968,” People’s December 25, 1968, an filed on November for discharge petition
213 16, order the “with case December sub- continuing to 17, a continuance to an “amended list December poenas,” of filed witnesses” the “Motion to by defendant’s People, Confession,” 19, a to continuance December Suppress 1968, a motion for and severance, an order and granting several other not here orders The trial was pertinent. on 6, commenced March
We do not reach the of whether question calling of the without further swearing jurors, proceedings, commenced of defendant’s trial within the contemplation the rule. counsel for the do not 120-day Although parties as to what the record it the agree shows, is that apparent venire was of the basis defendant’s motion. discharged The thereafter encountered delays are attributable at least in motions, defendant’s filed and the part subsequently trial court did err in denying petition discharge.
Defendant’s next contention of involves testimony an assistant State’s called in Attorney People rebuttal. Over defendant’s he testified to a objection, Dismukes, conversation with Robert defendant’s co- indictee and one of his alibi witnesses. He that stated for the trial of during Walter preparation Montgomery interviewed defendant briefly Dismukes in the Cook where were County jail incarcerated while they awaiting trial. testified that in the conversation Dismukes stated that he and the defendant had been in Mrs. Smrz’ house before the He stated, too, fire. that shortly talking prior to Dismukes and the defendant he had made no effort contact who both of lawyer them. represented that contends related testimony statement on the of his hearsay bearing directly question Massiah v. United it taken in guilt, was violation States 377 U.S. 84 L.Ed.2d S.Ct. (1964), 1199, and was inadmissible even for purposes impeach- violation Massiah is ment. no The contend that People involved for the reason that the in statement was used only rebuttal; that a Massiah assuming, question arguendo, it; raise without standing
is presented, evidence could be instructed was properly not as proof considered impeachment only made and that no defendant’s guilt; objection proper error. was not of the testimony admission Dis- interviewing the obvious impropriety Despite do not decide counsel, we notice to his without mukes whether admitted erroneously error for the that other reason impeachment requires *6 of of the and remandment the cause. reversal judgment erred is contended next that the trial court It to the an tendered instruction give by refusing venture. defendant withdrawal from a criminal regarding that The evidence relevant to withdrawal was only defendant and left home some 15 Dismukes Mrs. Smrz’ a before the fire and that made remark minutes Dismukes to the the others allegedly expressing disapproval the two entries into venture. Since this to subsequent defendant, the a radio and a house which during piece taken, were no cake since there is question regarding matters, withdrawal with to these and since the respect murder, defendant was error found not the any that have could resulted from the refusal possibly instruction would be prejudicial. that erred in contends next the trial court his motion to and statement
denying
unsigned
suppress
it into
He
record shows
evidence.
admitting
argues
to
with
Court
failure
section 3—2
comply
Juvenile
Act
which requires
ch.
par.
2)
(Ill.Rev.Stat.
703 —
notice
or
legally
be
to
person
given
parent
he be
for the
care and that
surrendered
minor’s
responsible
to a
The
officer without unnecessary delay.
juvenile
People
admit
the officers who arrested
questioned
record
did not
with
The
section 3—2.
comply
defendant,
to
shows
beyond
making
question
prior
statement,
with
to his
in detail
was admonished
respect
to remain silent and to have counsel
right
immediately
available, and that
the admonition.
defendant understood
Under the
with section
circumstances failure to comply
render
did not
the statement
v.
3—2
inadmissible. People
Defendant’s next contention involves attempted sister, of his Daretta who testified as a impeachment Jones, character witness in his behalf. Miss who stated that Jones, she was testified that she defendant’s acting “guardian,” knew his he because had never caused good reputation trouble her or any On anyone neighborhood. cross-examination assistant State’s Attorney inquired about a conversation she had had with him before trial. She said that she recalled conversation referred to. The ensued: following Would relate the to conversation
“Q. you ladies and gentlemen jury? Well, A. asked me to you tell Ike out cop would plead guilty robbery you drop Then, murder. offered him ten you fourteen. And what did then?
Q. you say told A. I wasn’t you wasn’t guilty. out.
going cop *7 Did tell me that knew he you took Q. you the cake, but knew he didn’t set the you fire? No,
A. I never mentioned no cake because I don’t know about that accident at anything [sec.] all. You never told inme
Q. of the presence Detective Tate that cake, brother took the your but there nois sense for him a murder getting rap because he do didn’t the burning? No, I didn’t.
A— Now, sure
Q. you’re about that?
A. I am positive.” Defendant’s made no attorney objection redirect asked additional to which the questions, witness that defendant that she had made no statement
replied would In rebuttal the State called Detective plead guilty. who Tate, follows: testified as time, if did Mrs. At that what anything
“Q. What, if did I to her? say? anything, say Jones that Mrs. A. At time Jones— going TOOMIN: I’m MR. object any- of the defendant. outside thing presence It should MR. BORANEK: This is rebuttal. have been to when I asked the question objected a little to be Mrs. It’s late objecting. Jones. I can
MR. TOOMIN: later. object THE answer. COURT: may what would you A. Mrs. asking Jones office recommend State’s Attorney’s court if her brother guilty. pled I at that time?
DidQ. anything reply Yes, You that sir, did. said A. you four- office would recommend State’s Attorney’s teen to twenty years. at time? Did Mrs. Q. say anything Jones it was little said that she thought
A. She for a of cake. high piece what, else, did she if And anything
Q. what— Detective? say, she said she would consider
A. And pleading or for two to five less.” her brother guilty of the admission impeach Defendant argues error it in that informed ment prejudicial for the further bargaining negotiations plea In matters. as to collateral reason that it was impeachment court, in Ill. v. (1914), People Pfanschmidt of two the testimony distinction between discussing uncle Geisel, an Henry witnesses called impeach rule “The defendant, at said 462-463: pages he has made witness be showing may impeached by thus statements, but he cannot be impeach- contradictory
217 ed as to collateral matters. ‘Since the of reason the rule excludes witnesses whose would introduce new testimony over issues and above those which be already might into, entered of be, test should collateralness naturally for could fact which are offered in contradiction they been have shown in evidence any purpose independent- of this contradiction?’ Under ly these author- [Citations.] it ities is clear that the asked Geisel as to his questions he when feeling, saw horse tracks the buggy after the fire were morning statement, Such if improper. it, was, made effect, in as to the of opinion guilt in Such an plaintiff error. could not have been opinion in given evidence himby Geisel had any purpose. stated that the relations between the in error and plaintiff his father were amicable. This was material on the question of motive. His statement to alleged Heidbreder could have been shown in evidence Geisel or else who anyone heard the statement which it is claimed was made by Charles Pfanschmidt, A. the father, hence it was properly admissible as impeaching testimony.”
The Court in Kersheval v. Supreme United States 220, 274 U.S. 71 L.Ed. (1927), 47 S.Ct. recognized of effect evidence of devastating a with drawn and our Rule plea guilty “If a provides: 402(f) discussion does not plea result in a or if a plea guilty, is not or plea withdrawn, or guilty if accepted on a judgment is reversed on direct or plea review, collateral neither discussion nor plea any or resulting agreement, shall be admissible plea, judgment the defendant against criminal any proceeding.” R. Ill.2d
It is obvious that for the contradiction and except impeachment, witness testimony Jones cross-examination and the rebuttal Detective Tate would not been admissible, have and their admission was error so toas reversal. prejudicial require
For the reasons stated of the circuit judgment *9 reversed, the is
court Cook is cause County remanded for a new trial.
Reversed and remanded. RYAN, MR. dissenting: JUSTICE for set I from the the reasons dissent majority opinion forth below.
In the the foundation laying impeachment Daretta asked which quite questions prosecutor Jones called for answers which would contain objec- obviously it tionable material. It is also clear that was part to defense to this witness counsel’s strategy permit with the talk about discussion plea bargaining prosecu- He tor. therefore did not to because object questions time that was at same laying prosecutor he also of this witness was foundation the impeachment exami- redirect for defense counsel’s the foundation laying had the State to show nation which was designed to salvage trying weak this case against for a to bargain seeking plea something by desperately steadfastly and this witness the defendant but guilty, one To understand this strategy maintained innocence. to the cross-examination quoted had consider only which redirect examination with this majority opinion thereafter: immediately appears Mrs. this conversation “Question. Jones, [the been to, has that occurred prosecutor] referring in this building? Yes,
Answer. sir.
[*] [*] [*] You had several with conversations Question. him? Yes,
Answer. sir. Each time wanted to make a Question. deal with you, right; Yes,
Answer. sir. He wanted to tell brother you your Question. to to then he would robbery plead guilty drop case, murder is that right?
Answer. Yes. to him ten going
Question. give fourteen years? Yes,
Answer. sir. And did tell him brother you your
Question. plead guilty something he wasn’t about didn’t do? Yes,
Answer. sir.” In order maneuver and to produce strategic make his with the did not counsel point jury, object to set the for this scene. permitted prosecutor stage *10 Now received the benefit of his having strategy (defend- ant was found not urges murder) this cross-examination error and this court holds that it was error so as to reversal even in the prejudicial require absence of an objection.
Our Rule 615 Ill.2d R. (50 provides plain 615(a)) errors substantial noticed on affecting be rights may appeal were not although to the attention they brought trial court. There was no counsel defense objection by to this line of rebuttal questioning testimony except upon Detective Tate and then the was not that objection concerned but plea bargaining only conversation took outside place presence defendant. This was not therefore question preserved review it can be unless said be within the error” “plain of Rule 615. concept
I is presume majority saying regard- opinion less of counsel’s failure to trial should object judge have himself into injected case stopped the^ cross-examination this witness. An prosecutor’s exper- ienced was, reluctant this judge, judge rightfully counsel’s trial strategy interrupt development should not be do did so. The defense counsel expected to this line of it to object questioning. permitted For to his benefit.
continue it would develop hoping revers- these reasons I cannot concur court’s opinion the conviction this basis. ing (No. 43486.
THE ILLINOIS, PEOPLE OF THE STATE OF Appellee, al.,
v. ALBERT et Appellants. JASHUNSKY Opinion March filed