People v. Bailey, 57088

• Court: United States Appellate Court of Illinois
• Citation: 309 N.E.2d 383,18 Ill.App.3d 80
• Docket Number: No. 57088,57088
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin BAILEY, Defendnt-Appellant.
• Decision Date: 19 February 1974

Page 383

309 N.E.2d 383 18 Ill.App.3d 80 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Melvin BAILEY, Defendnt-Appellant. No. 57088. Appellate Court of Illinois, First District, Second Division. Feb. 19, 1974.

Page 384

Edward V. Hanrahan, State's Atty., Chicago, for plaintiff-appellee; Elmer C. Kissane and Patrick J. McNally, Chicago, of counsel.

LEIGHTON, Justice.

A sixteen-count indictment charged defendant Melvin Bailey and two co-defendants, Andrew McChristian, Edward Dinkins, with aggravated assault and aggravated battery on five persons, attempts to murder and a conspiracy to murder the same five people. Prior to their trial, on motion of the State, the charges of aggravated assaults and aggravated batteries were dismissed. Defendant, McChristian and Dinkins then went to trial before a jury on the remaining counts.

At the close of the State's evidence, the trial court directed the acquittal of Dinkins on all the charges. However, the State's cases against defendant and McChristian went to the jury. It returned verdicts that acquitted McChristian of the attempts to murder but found him guilty of conspiracy. Defendant was found guilty of the five attempts and the conspiracy; the trial court sentenced him to serve six concurrent terms of ten to fifteen years. McChristian took a separate appeal; and in an opinion which contains a detailed statement of the facts from which the charges arose, we have today reversed his conviction. People v. McChristian, 18 Ill.App. 87, 309, N.E.2d 388.

In this appeal, the only substantive issue is whether the State's impeachment of a court witness introduced hearsay evidence that prejudiced defendant's right to a fair trial. Since this issue is raised from events that occurred at the trial, and our opinion in McChristian states the facts which underlie the indictment, we will not restate the events that gave rise to the charges, except as our discussion of the issue may require.

I.

At defendant's trial, the third witness called by the State was David Barksdale, one of five persons named in the indictment as victims of the assaults, the batteries, the attempts and the conspiracy to murder. Barksdale refused to testify because he feared self-incrimination. Because he invoked his right not to incriminate himself, the State petitioned the trial court to grant him immunity. This was done, and immediately thereafter, one of the assistant state's attorneys made an oral motion that [18 Ill.App.3d 82] Barksdale be called as a court's witness. The defendants objected, but after a hearing outside the jury's presence, the motion was granted with the understanding that the trial judge was to tell the jury that Barksdale was a court's witness, one whose testimony was not vouched for either by the prosecution or the defense.

Barksdale then testified and in answer to questions asked by an assistant state's attorney, told the jury that on the evening of May 8, 1968, the drove his automobile past 6526 South Ellis Avenue, Chicago and shooting of guns erupted. He said he did not know who shot at his automobile. Although he said he knew the defendant, he denied seeing him on the evening of May 8, 1968, at or near 6526 South Ellis. In answer to a question, Barksdale said that he saw McChristian and Dinkins at the scene of the shooting, but he did not see them fire any guns at his automobile. He denied seeing either Dinkins or McChristian with a gun in his possession. Barksdale was asked whether at a police station, after the shooting, he saw defendant and McChristian and had a conversation with them. His answer was that he saw them there, but that 'they remained silent.'

Barksdale was then asked whether in the state's attorney's office, shortly after the May 8, 1968 shooting, he spoke to an assistant state's attorney and on that occasion said that defendant, McChristian and Dinkins 'shot at me on May 8.' Barksdale admitted making the statement, but said that what he said on that occasion was a lie. Then, Barksdale was asked whether

Page 385

eight months before the trial he was in the state's attorney's office, where, in the presence of one of the three policemen, he told the assistant state's attorney in the case that defendant and McChristian shot at him on May 8, 1968. Barksdale's answers were at first evasive; but he was pressed by questions aimed at determining whether it was true he had said, eight months before the trial, that the defendants had fired at him on May 8, 1968. After a number of questions to which he gave unresponsive answers, Barksdale said that he made the statement; but at the time, he was angry, and 'I would have said anything.' Next, Barksdale was asked whether a week before the trial he had not made statements to an assistant state's attorney that defendant, McChristian and Dinkins had guns in their possession on May 8, 1968, and had shot at him. He said he had because he was angry at one of the policemen and 'I was still mad at Bailey (the defendant).' Then, he was asked whether he had been questioned the day of the trial concerning the shooting incident of May 8, 1968. Barksdale said he had. The assistant state's attorney who was questioning him asked Barksdale, 'And did you tell me this afternoon that Melvin Bailey shot at you on May 8, 1968?' Barksdale answered, 'I told you that because I [18 Ill.App.3d 83] came down to...