People v. Flaugher

• Decision Date: 13 August 1992
• Docket Number: No. 4-91-0796,4-91-0796
• Citation: 232 Ill.App.3d 864,598 N.E.2d 391
• Parties: , 174 Ill.Dec. 194 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald FLAUGHER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 391

598 N.E.2d 391

232 Ill.App.3d 864, 174 Ill.Dec. 194

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald FLAUGHER, Defendant-Appellant.

No. 4-91-0796.

Appellate Court of Illinois Fourth District.

Aug. 13, 1992.

Rehearing Denied Sept. 14, 1992.

Curtis L. Blood, Collinsville, for defendant-appellant.

Charles H. Burch, State's Atty., Hardin, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, Elliott Turpin, Staff Atty., Springfield, for plaintiff-appellee.

Presiding Justice GREEN delivered the opinion of the court:

On August 3, 1990, a two-count indictment was returned in the circuit court of Calhoun County charging defendant Ronald Flaugher with the offense of attempt (first degree murder) (Ill.Rev.Stat.1989, ch. 38, pars. 8-4(a), 9-1(a)(1)) committed on July 8, 1990, against two separate victims. The first count named defendant's brother Thomas Flaugher as the victim and the second count named Thomas' wife, Dorothy Flaugher, as the victim. After a jury trial, the court entered judgment on August 5, 1991, on a verdict finding defendant guilty on both counts. Subsequently, the court sentenced defendant to two consecutive terms of 15 years' imprisonment. Defendant has appealed. We affirm.

Defendant makes no claim that the evidence was insufficient to support the verdict but asserts that the evidence was sufficiently balanced that several errors, either singularly or as accumulated, require a new trial. He contends those errors arose from (1) a misunderstanding by the court of the operation of the Montgomery rule (People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695); (2) admission of testimony of defendant's post-arrest silence after receiving Miranda warnings; (3) perjury of State's witness Thomas Flaugher, discovered after the trial; (4) refusal of the court to permit defendant to call the prosecutor as a witness; (5) improper closing argument by the prosecutor; (6) the submission of a confusing set of instructions to the jury; and (7) ineffective assistance of counsel. We hold that (1) defendant was not deprived of his right to effective assistance of counsel, (2) the evidence was not evenly balanced, and (3) any errors committed were neither singularly nor in combination such as to warrant the grant of a new trial.

Defendant admits that on July 8, 1990, during a dispute, he intentionally fired a shotgun at the two victims and hit them. He also admits he then fired a pistol at Thomas and missed him. Defendant contended at trial that the seriousness of his conduct was sufficiently mitigated by provocation that he was only guilty of attempt (second degree murder) (Ill.Rev.Stat.1989, ch. 38, pars. 8-4(a), 9-2(a)(1)). He contends that the provocation arose from a series of events culminating in the July 8 episode in which he shot the two victims.

In 1985 or 1986, defendant and Thomas purchased real estate in Granite City. In 1988 or 1989, they sold one-half of the interest in that real estate and purchased land in Calhoun County which had constituted two adjacent farms. One was called the Becker farm and, at times, Thomas had stayed there. The other was called the Meyer farm and defendant and his family had stayed there. The deeds to the property had been drafted in such a way that Thomas, defendant, and defendant's wife Donna Flaugher each owned an undivided one-third interest in the property. Thomas violently objected to this division, contending he was entitled to a one-half interest. Defendant maintained the division was fair because he had made a greater monetary contribution to the purchase price.

The dispute between Thomas and defendant had become so acute that, according to Thomas, defendant had told him that he, defendant, would kill him if he came on the land. Thomas also testified that defendant had once shot at him and missed when he did come on the land. Thomas admitted he once told defendant the title question should have been straightened out and, if somebody was killed in the dispute, "it is going to be" defendant. Another sore point between defendant and Thomas occurred when Thomas became angry at defendant's son for riding a four-wheeler on a hill on the Becker farm and hit the boy knocking him from the four-wheeler. Evidence indicated further threats between the brothers ensued after this incident. Some witnesses testified that Thomas had become so involved with his disputes with defendant that they questioned his mental stability.

The specific dispute giving rise to the shooting concerned a wagon-type trailer, title to which was in defendant's name and in which he claimed ownership. Thomas contended he had helped build it and had some rights to it. On July 8, 1990, Thomas towed the trailer from the farm of a friend named Watters to the Becker farm. According to Thomas, he intended to pick up an air engine which was in a barn at that farm, and place it on the trailer and take it to his house and then return the trailer. Thomas testified that defendant drove up and objected to his using the trailer but he told defendant he would return the trailer as soon as he was done and defendant left. Defendant testified he told Thomas he needed the trailer to take their father's corn picker to Missouri. Both agree that defendant then left and came back in about 15 minutes with a shotgun. Both defendant's wife Donna and Thomas' wife Dorothy had been with their husbands, but when defendant returned he was alone.

According to Thomas, when defendant returned, defendant backed his truck into the trailer, knocking the trailer off of a jack. Thomas further testified defendant then got out of his truck and stated, "I have warned you once that I'd kill you if you came back, and I'm going to kill you," whereupon defendant fired his shotgun first at Thomas, who was standing by the trailer, and then at Dorothy, who was in the cab of Thomas' truck. Both were hit. Thomas further stated that defendant then fired a pistol at him but missed him and then left. Dorothy's testimony corroborated the version given by Thomas but she stated she could not see whether Thomas had a gun in his hand when defendant fired at him.

Defendant testified that when he returned, Thomas called him names and threatened to kill him and his wife and held a gun in his left hand as he made those threats. Defendant admitted he fired at Thomas and then at Dorothy. He stated that Dorothy had her hand between the door of the cab and the windshield and he thought she had a gun. Defendant then asserted that he saw Thomas on the ground pointing a pistol at him so he fired at Thomas and then drove off. Defendant testified he then telephoned Calhoun County Sheriff Stacy Ferguson and told him he had shot Thomas and Dorothy at the Becker farm. Both defendant and the sheriff testified that before coming to the Becker farm, defendant had gone to the sheriff's house and requested the sheriff to accompany him to the Becker farm because he anticipated difficulty in getting the trailer from Thomas. The sheriff had refused to intervene in the civil dispute over the trailer.

Defendant's most serious claims of error concern (1) the contention that the circuit court misunderstood the Montgomery rule, and (2) the court's permitting introduction of evidence of defendant's post-arrest silence.

As is well known, in Montgomery the supreme court adopted what became Federal Rule 609 (Fed.R.Evid. 609) in regard to impeachment of a witness by proof of conviction of a crime. The essence of the rule is that the conviction must (1) be for (a) a felony or (b) a misdemeanor involving dishonesty or false statement, (2) have been entered not more than 10 years prior to use at trial, and most importantly, (3) be one which the trial judge determines to be of a probative value that is not "substantially outweighed by the danger of unfair prejudice." (Montgomery, 47 Ill.2d at 516, 268 N.E.2d at 698, quoting 51 F.R.D. 391.) The third aspect as stated above constituted the balancing test required under the Montgomery rule. Montgomery and its progeny make clear that similarity between the offense for which the accused is on trial and the offense conviction of which is offered for impeachment enhances the prejudice to the accused but does not absolutely bar use of the conviction. See People v. Moore (1978), 65 Ill.App.3d 712, 22 Ill.Dec 420, 382 N.E.2d 810; M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 609.4, at 380 (5th ed. 1990).

Here, the court denied a defense motion in limine to suppress use of defendant's prior Federal convictions for conspiracy to possess and distribute in excess of five kilograms of cocaine and possession of a firearm by a felon. Defendant then admitted these convictions in his testimony in chief. In denying the motion in limine, the trial judge stated "[u]nfortunately, I think the Federal would be admissible 'cause it goes to the very essence of the charge here, which is attempt murder, first degree, involving a weapon." This would seem to indicate the court misapplied the balancing test under a mistaken belief that the greater the similarity between the offense charged and the impeaching offense the stronger the case for admissibility.

The court did, however, recognize the existence of the requirement for a balancing test and also stated at the time of ruling on the in limine motion that "[t]he fact that they're a felony doesn't necessarily qualify them for admission." Moreover, the narcotic offenses were not closely related to the attempt (murder). Even the possession of the gun conviction was not highly prejudicial to defendant. The evidence was so overwhelming that he possessed the propensity to carry a gun that the effect of the added conviction was very minor. We conclude no reversible error resulted.

In support of the trial court's ruling on the in limine motion, the State cites the decision of this court in People v. Blythe (1974),...