People v. Brown

• Decision Date: 23 April 1975
• Docket Number: No. 73--240,73--240
• Citation: 327 N.E.2d 51,27 Ill.App.3d 569
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sebon BROWN, Jr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 51

327 N.E.2d 51

27 Ill.App.3d 569

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sebon BROWN, Jr., Defendant-Appellant.

No. 73--240.

Appellate Court of Illinois, Second District, First Division.

April 23, 1975.

Thomas M. P. Hannigan, Mundelein, for defendant-appellant.

Jack Hoogasian, State's Atty., John Goshgarian, Asst. State's Atty., Waukegan, James W. Jerz, Ill. State's Atty. Assoc., Elgin, for plaintiff-appellee.

HALLETT, Justice.

The defendant, after a jury trial, was convicted of the crime of rape and sentenced to a term of fifteen to thirty years imprisonment. The defendant herein and a co-defendant, James Edwards, were tried in a single trial, wherein each was represented by separate counsel. The issues presented are 1) whether the trial court abused its discretion in denying the defendant's motion for a severance; 2) whether the trial court unduly restricted defendant's cross-examination of the testimony of an accomplice; 3) whether the trial court erred when it denied the defendant's offer of proof during the cross-examination of the accomplice; 4) whether the court erred when it overruled defendant's objection during the re-direct examination of the prosecutrix; and 5) whether the trial court erred in permitting counsel for the co-defendant to examine the witnesses who had been called by the defendant.

We find the defendant's contentions to be without merit and affirm.

The defendant Sebon Brown, Jr., James Edwards, and David Croom were jointly indicted on January 22, 1973, for the robbery and rape of a seventeen year old girl. Prior to the trial, David Croom entered a plea of guilty to the crimes charged in the indictment and was sentenced on the robbery charge only. As part of the plea negotiations, David Croom agreed to testify on behalf of the People of the State of Illinois in the case against Sebon Brown, Jr. and James Edwards.

On April 5, 1973, counsel for defendant Brown, Mr. Hannigan, filed a motion for a severance, which was supported by an affidavit alleging that the proposed defenses of Brown and James were antagonistic and inconsistent. Brown's defense, the motion alleged, was to be that of an alibi, whereas Edwards' defense was to be that of consent of the victim. In support of the motion for severance, Mr. Hannigan argued that the presentation of these particular defenses within a single jury trial would unduly prejudice his client and prevent an effective defense from being presented. This motion was denied.

On April 9, 1973, a similar motion for a severance of the trials of the defendants was presented by counsel for defendant Brown. This motion was also denied.

Immediately prior to the commencement of the trial, Mr. Hannigan again urged the court to order a severance of the trials. At this point, Mr. Hannigan stated that he had been informed at an earlier time that Edwards intended to assert the consent of the victim as his defense. Mr. Hannigan stated for the record that Edwards had changed his defense from consent of the victim to that of identification. Counsel for defendant Brown argued that even though this defense was apparently harmonious with the alibi defense of his client, his client would be denied an effective defense merely by virtue of being tried with James Edwards. He asserted that Edwards' attorney, Mr. Boches, was not prepared for trial due to Edwards' lack of co-operation in preparing his defense. Even though the defenses were no longer antagonistic there existed a 'personal antagonism', according to Mr. Hannigan, which compelled a severance. Mr. Boches assured the court that he was prepared to defend Edwards and did not support Mr. Hannigan's argument for a severance. The court denied this motion for a severance and the case proceeded to trial.

During the trial, the State called, among other witnesses, David Croom, who testified in essence that Sebon Brown, Jr., James Edwards, and himself had had intercourse with the prosecutrix by force and against her will. This testimony was crucial in the State's case against Sebon Brown, Jr., since the prosecutrix, although able to positively identify James Edwards, was not able to identify Sebon Brown, Jr. with certitude. The State also brought out during direct examination of David Croom the fact that he had entered a plea of guilty to the crimes charged in return for the State's promise to recommend probation.

During the cross-examination of David Croom by counsel for defendant Brown, the court sustained an objection to a question designed to elicit a prior inconsistent statement of the witness, and thereby impeach his credibility. Upon his arrest, David Croom had stated to a police officer that he had been playing cards with some friends at the time the rape had been committed. However, later in the cross-examination of David Croom, counsel for defendant Brown did present the impeaching prior inconsistent statement to the jury without objection. In addition, it should be noted that the police officer, to whom David Croom had made the prior inconsistent statement, testified regarding that statement.

Also during the cross-examination of the accomplice-witness, David Croom, by counsel for defendant Brown, the witness was interrogated and testified concerning the circumstances surrounding his plea of guilty. Initially, this line of questioning was objected to by the State, and the court sustained the objection. However, at a later point, the defense counsel was successful in fully disclosing the promises made to Croom by the State's Attorney, the witness testified that he had been promised probation with periodic imprisonment, immunity from potential prosecution by the federal government, and a recognizance bond release. In return for these promises, the accomplice-witness testified that he promised to testify on behalf of the State.

The testimony of the seventeen year old prosecutrix regarding the rape was essentially the same as that of the accomplice-witness, David Croom. As stated earlier, on direct examination, the victim was able to identify James Edwards, but was unable to identify with certitude Sebon Brown, Jr. On cross-examination by Mr. Boches, counsel for defendant Edwards, the prosecutrix was asked, '* * * is it possible that you could be mistaken about the identity of the people?' The defendant herein, Sebon Brown, Jr., did not object to this question, even though it encompassed mistaken identification of both defendants. On re-direct examination, the Assistant State's Attorney asked the following question, 'May the defendant, Sebon Brown, Jr., who I'm pointing to, next to Mr. Hannigan, have been in the car?' Over the objection of Brown's counsel to the question as being outside the scope of cross-examination, the court allowed the prosecutrix to answer this question. In answering, the prosecutrix stated that it was possible that Sebon Brown, Jr. was one of her assailants. On re-cross examination by Mr. Hannigan, he asked the prosecutrix the following:

Q. * * * is it possible that he is not the person?

A. Yes, but it's also possible that he was the one * * *'

At the conclusion of the State's case, Mr. Hannigan presented three alibi witnesses, Ella Scott, Carolyn Scott, and Sebon Brown, Sr., who testified that defendant Brown was with them at the time of the commission of the offense. In addition, Sebon Brown, Jr. testified that he was in the company of these three witnesses at the time the crime had been committed.

The co-defendant, James Edwards, presented no evidence. Thereafter, during Mr. Hannigan's closing argumentation, the following occurred.

Mr. Hannigan: * * * I'm very frustrated by the posture of this particular case. I want to get up, and I want to talk about it. But I am frustrated by the co-defendant. I am. And I think that maybe the evidence of guilty as against him may be so overwhelming . . .

Mr. Boches: Your Honor, I object to this kind of argument. I don't think it's up to him to comment on my client.

Subsequently, during the closing argument of Mr. Boches, he stated:

'* * * For a minute I kind of thought we had two prosecutors here. I can't find out whether Mr. Hannigan is more anxious to convict my client than he is to free his own . . .

Mr. Hannigan: Your Honor, I made no such argument. I object.

The Court: The objection is overruled. You brought it out in the open. He has a right to reply to it.

Thereafter, the jury returned verdicts of guilty against both defendants. Defendant Edwards was sentenced to a term of ten to twenty years imprisonment. A sentence of fifteen to thirty years imprisonment was imposed upon defendant Brown, who has taken this appeal.

The first issue presented for our consideration is whether the trial court abused its discretion in denying the defendant's motion for a severance from the trial of the co-defendant, James Edwards. It is provided that

'If it appears that a defendant or the State is prejudiced by a joinder or related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.' (Ill.Rev.Stat., 1973, ch. 38, par. 114--8.)

Defendant contends that the failure to sever the trials of the defendants deprived him of a fair trial. At the trial, the defendant herein presented an alibi defense, and the co-defendant argued mistaken identification and reasonable doubt. Defendant concedes that the defenses asserted at the trial are not mutually exclusive nor inconsistent with each other. It is well recognized that antagonistic defenses of the defendants provide grounds for a severance. However, this is not present in the case at bar. Rather, the defendant asserts that there was a 'personal antagonism', which operated to the detriment of his client.

In support of his contention, the defendant sets forth illustrations of what he refers to as 'personal...