People v. Anderson, 1-90-3460

• Decision Date: 30 July 1993
• Docket Number: No. 1-90-3460,1-90-3460
• Citation: 190 Ill.Dec. 20,250 Ill.App.3d 439,620 N.E.2d 1281
• Parties: , 190 Ill.Dec. 20 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy ANDERSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1281

620 N.E.2d 1281

250 Ill.App.3d 439, 190 Ill.Dec. 20

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy ANDERSON, Defendant-Appellant.

No. 1-90-3460.

Appellate Court of Illinois First District, Sixth Division.

July 30, 1993.

Office of the State Appellate Defender, Chicago (Michael J. Pelletier, Deputy Defender and Alan D. Goldberg, Asst. Appellate Defender, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Margaret J. Faustmann, and Fabio Valentini, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice GIANNIS delivered the opinion of the court:

Defendant, Timothy Anderson, appeals from a judgment entered on a jury verdict finding him guilty of armed robbery (Ill.Rev.Stat.1989,

[190 Ill.Dec. 23] ch. 38, par. 18-2(a)) and sentencing him to a period of seven years in the penitentiary. On appeal defendant raises the following issues for review: (1) whether he was denied due process when the State insinuated that he had confessed to one of the witnesses, but failed to present evidence to support this insinuation; (2) whether certain closing arguments made by the prosecutor were improper; (3) whether certain of the trial judge's comments were prejudicial; and, (4) whether he was denied a fair trial when the jury instructions given for armed robbery failed to include the requisite mental state.

BACKGROUND

Due to the nature of the issues raised on appeal, it is necessary to discuss the background of the case in some detail.

Glenn Bone's Testimony

The complaining witness, Glenn Bone, testified that on the night of August 27, 1989, he was filling a tire on his car at a service station in Chicago. As he was kneeling by the tire, which was on the right-front passenger side of the vehicle, he heard a noise. As he looked over the hood of the car, he saw a man pulling at the driver's side door of the car. Bone stood up and asked the man if he could help him, and then repeated this after the man failed to respond. Bone then felt a gun in the back of his head and heard the person holding the gun order him away from the car. Bone turned to face the man with the gun and observed that the man with the gun was wearing a black leather jacket with white stripes on the sleeve and a baseball cap. Bone later noticed the words "Dark Horse" on the back of the jacket.

At trial, Bone testified that he reached into his pocket and removed his keys, handing them to the man with the gun. Bone admitted testifying at a preliminary hearing, however, that he had left the keys in the ignition while he was filling the tire. In any case, Bone began to back away slowly from the gunman and then looked to a nearby intersection where he spotted a police car at a traffic light. Bone testified that he saw the gunman throw the car keys to the second man on the driver's side of the car and that both men then got into the car from their respective sides of the vehicle. He stated, however, that once inside the car the men could not get the ignition started because he had left the car in drive. While the men attempted to start his car, Bone ran into the middle of the street and stopped the police car. An officer inside the car, Sergeant Reyes, rolled down the car window and Bone explained to the officer what was happening. Bone then climbed into the back of the police car and Bone observed the two men get out of the car and switch places. Once the gunman was behind the wheel, the ignition of his car started and he and Officer Reyes watched the car turn into a nearby alley.

Bone and Officer Reyes followed Bone's car until it pulled into a large Chicago housing project. During the pursuit, officer Reyes radioed to other units that he was following a stolen vehicle and would require assistance. The stolen car stopped and both men jumped out, leaving Bone's car running. Sergeant Reyes stopped the police car directly behind Bone's car and grabbed his portable radio, telling Bone to remain in the police car. Reyes then began chasing the man with the black jacket and cap after the suspects split up and ran in opposite directions. Bone eventually lost sight of the man officer Reyes was pursuing.

While Reyes was chasing one of the robbery suspects, Bone remained in the police car and noticed squad cars converging from all directions. Bone testified that five or six minutes after leaving the car, Reyes returned to the vehicle, getting inside with him. Approximately a half-minute later, Bone heard another officer radio a message to Reyes that "we got the individual." Sergeant Reyes then told Bone, "I think we got your man. They [are] going to bring him around for you to identify. Do you still remember him?" Bone told Reyes that he did. After another 30 seconds to a minute, an unmarked car pulled up directly next to the police car in which Bone was sitting, and a detective in the second car told Bone that they were about to let him identify the suspect. The detective then

[190 Ill.Dec. 24] turned on the interior lights of the unmarked car and Bone could see the suspect. Bone then identified the suspect as the man who had held the gun, although at the time of the identification Bone noted that the suspect was no longer wearing the black jacket. By Bone's estimate, this identification took place less than 15 minutes after the robbery. In court, Bone identified defendant as the man who had held the gun.

Bone's First Conversation with Defendant

Bone testified on direct examination that, prior to the beginning of the trial, he had a conversation with defendant in the hallway outside the courtroom. According to Bone, defendant approached him and began the conversation. Bone testified that defendant said he had enrolled in Malcolm X College and was on the school's basketball team. Bone also indicated that defendant apologized for the robbery and asked if there was anything that Bone could do to help him. Bone told defendant that there was nothing that could be done and that it was in the hands of the judge. Bone indicated to defendant that Bone himself taught a course part-time at Malcolm X College, that he knew a majority of the players on the team and that he was going to check and see whether defendant was telling him the truth.

Bone's Second Conversation with Defendant

During cross-examination Bone confirmed that, following his discussion with defendant, he checked on defendant's grades and activities at Malcolm X College. He also stated that he went to the gymnasium at Malcolm X College that evening where he went to speak with Malcolm X College's Athletic Director, Dan Davis. Bone testified that he and Davis were speaking in Davis' office when defendant and another man came in. During this conversation Bone admitted that in October, presumably of 1989, he twice had seen a man whom he believed may have been defendant. Bone called the State's Attorney's office to see if the man whom he knew had been arrested for the armed robbery had gotten out on bond. At that time the State's Attorney's office reassured Bone that it could not have been defendant because defendant was still in custody. On cross-examination Bone denied that he was unsure of his identification of defendant. He also denied that he had ever indicated uncertainty about his identification to Davis.

Bone's Third Conversation with Defendant

Bone also testified that on the day prior to his testifying at trial, he was stopped at the courthouse by defendant, who indicated that defendant's father wished to speak with Bone. Bone indicated that defendant's father asked if there was anything that could be done to help defendant, but Bone only indicated that it was "out of my hands." On cross-examination Bone denied telling either defendant or his father that the State had threatened him with a perjury charge should he recant his original identification of defendant.

Defendant's Offer of Proof

Immediately after Bone's testimony, but outside the presence of the jury, the State inquired how the defense intended to perfect its attempt to impeach Glenn Bone when, in fact, defendant had listed no witnesses in his Answer to Discovery. The State indicated that, if impeachment of Bone were not somehow perfected, it would seek an instruction telling the jury to disregard defendant's cross-examination of Bone, as well as sanctions against defendant's counsel. Defendant's counsel replied that he had just learned of the conversation between Bone, Davis, defendant and another coach at Malcolm X College and that he would be glad to have Davis come to the trial that afternoon to be called as a witness. He also indicated that defendant himself would perfect the attempt to impeach Bone.

Following lunch, and outside the presence of the jury, defendant presented Dan Davis and James Williams as possible witnesses. Davis, a 43-year-old athletic director at Malcolm X College, said that he had seen defendant and Bone in his office on the Friday evening immediately before Williams testified that he went to Davis' office on Friday evening with Bone and defendant, after Bone arrived during basketball practice. Williams also stated that he heard Bone express uncertainty as to the identity of the offender. The State's motion to exclude Davis and Williams as witnesses was denied.

[190 Ill.Dec. 25] trial. James Williams, the basketball coach, was there as well. Davis said that Bone told him that he could no longer positively identify defendant as the offender. Davis also said that Bone even asserted an inability to be sure there was a weapon used in the offense.

Police Testimony

Following the offer of proof, the State continued with its case. Officer Reyes, the police officer who was on patrol near the scene of the robbery, substantially corroborated Bone's version of the events, identifying defendant in court as the suspect who was wearing the black jacket at the time of the robbery. Reyes was unable, however, to indicate...