People v. Martinez

• Citation: 75 Ill.Dec. 936,120 Ill.App.3d 305,458 N.E.2d 104
• Decision Date: 13 December 1983
• Docket Number: No. 82-2877,82-2877
• Parties: , 75 Ill.Dec. 936 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fidel MARTINEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 104

458 N.E.2d 104

120 Ill.App.3d 305, 75 Ill.Dec. 936

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fidel MARTINEZ, Defendant-Appellant.

No. 82-2877.

Appellate Court of Illinois First District, Second Division.

Dec. 13, 1983.

Frank Celani, Lansing, for defendant-appellant.

Richard M. Daley, State's Atty., Cook County (Michael E. Shabat, Lawrence R. Stasica and Thomas J. Finn, Asst. State's Attys., of counsel), for plaintiff-appellee.

HARTMAN, Justice:

Defendant was charged with having left the scene of a personal injury accident in violation of section 11-401(a) of the Illinois Vehicle Code ("Vehicle Code"), a Class A misdemeanor, and with driving too fast for conditions. (Ill.Rev.Stat.1981, ch. 95 1/2, pars. 11-401(a), (c); 11-601(a).) A jury found defendant guilty of the former charge only with a recommendation of leniency, judgment was entered on the verdict, and he was sentenced to conditional discharge of one year.

Defendant raises issues of whether the circuit court erred by: prohibiting him from engaging in certain cross-examination; denying his motions to dismiss, for a mistrial, and in arrest of judgment; and refusing to find the relevant statute unconstitutional.

At the jury trial on September 14, 1982, the State's first witness, Eric McNeal, age 17, testified that on April 24, 1982, at approximately 10 p.m., he and three friends were riding bicycles southbound on May Street. When they reached 124th Street, defendant's automobile, traveling east on 124th Street, entered the intersection and struck the right side of McNeal's bicycle, knocking him off the bicycle and causing him to tumble for a distance of eight feet. He felt "lots of pain" in his knees, shoulder, and right thumb and sustained a cut on the thumb. He tried but was unable to stand. The automobile stopped. Defendant got out and told him he "had no damn business" riding the bicycle on the street. Defendant said nothing further, returned to his car, and drove away. His license number was noted. The police and an ambulance arrived, and McNeal was taken to a hospital.

Cecil Williams and Kelvin McDuffey, two of the three who were riding bicycles with McNeal, essentially corroborated McNeal's testimony with respect to the collision, the injury, and defendant's conduct at the scene. They noted the license number, make and color of defendant's automobile. McDuffey summoned the police to the post-occurrence scene.

Defendant testified that the left side of his automobile collided with McNeal's bicycle. After defendant stopped his car and got out, McNeal was sitting down, but he helped him up. McNeal told him he was fine. He asked McNeal six or seven times if he wanted to go to the police or have the police called because he noticed McNeal "grabbing his hand like this," but the boy declined. Defendant returned to his car and drove off. He did not give McNeal his name, address, telephone number or automobile registration information. He did not contact police.

Oscar Gonzalez, a passenger in defendant's car, corroborated defendant's version of the incident. Another passenger, Jose Corral, did not testify apparently because he had been deported by the United States government.

The jury's finding of guilt and sentencing as first noted followed. Defendant's motions for a new trial, in arrest of judgment and to reduce sentence were denied. This appeal proceeds from the judgment and orders denying defendant's post-trial motions.

I.

Defendant initially argues that the circuit court erred in prohibiting him from cross-examining McNeal as to whether he contemplated filing a civil action against defendant, claiming that such refusal amounted to a denial of defendant's right to impeach the witness by showing his interest, bias or motive. Cross-examination for such impeachment is a matter of right, subject only to the trial court's discretion to preclude repetitive or unduly harassing questioning. (People v. Thompson (1979), 75 Ill.App.3d 901, 903, 31 Ill.Dec. 220, 394 N.E.2d 422; People v. Phillips (1981), 95 Ill.App.3d 1013, 1020, 51 Ill.Dec. 423, 420 N.E.2d 837.) Although the trial court has no discretion to preclude such impeachment entirely, it can, assuming a proper subject matter, control the extent of such cross-examination. Thompson, 75 Ill.App.3d 901, 903-04, 31 Ill.Dec. 220, 394 N.E.2d 422.

The actual pendency of civil litigation is relevant as tending to show the bias or interest of a witness, and thus is a proper subject matter of cross-examination. (People v. Rongetti (1928), 331 Ill. 581, 598, 163 N.E. 373; People v. Peltz (1908), 143 Ill.App. 181, 182; see also, McCormick, Evidence § 40, at 79 (2d Ed.1972); 3A Wigmore, Evidence § 949, at 788 (Chadbourn Rev.1970).) The instant case, however, involves potential rather than pending litigation. What action, if any, a witness may or may not choose to file in the future is so indefinite and questionable as to have little probative value. In People v. Bradford (1979), 78 Ill.App.3d 869, 34 Ill.Dec. 191, 397 N.E.2d 863, defendant attempted to impeach a witness by asking him whether any civil action was contemplated against the witness or the witness' employer. The trial court's barring of such cross-examination was upheld as within the court's discretion because such testimony would have been speculative and uncertain. (Bradford, 78 Ill.App.3d 869, 877, 34 Ill.Dec. 191, 397 N.E.2d 863.) To the same effect are People v. Heidorn (1983), 114 Ill.App.3d 933, 70 Ill.Dec. 439, 449 N.E.2d 568; and People v. Denby (1981), 102 Ill.App.3d 1141, 58 Ill.Dec. 475, 430 N.E.2d 507. We find no abuse of discretion in the circuit court's denial of such cross-examination here.

Assuming, for the sake of argument, that the court could be considered to have erred in refusing to allow defendant's proposed cross-examination as to such potential litigation, that ruling would not merit reversal unless the court's abuse of discretion resulted in manifest prejudice to defendant. (People v. Lenard (1979), 79 Ill.App.3d 1046, 1050, 35 Ill.Dec. 104, 398 N.E.2d 1054.) Since McNeal's testimony in the present case was substantially corroborated by two other witnesses, no prejudice could have resulted from the preclusion of testimony which, at most, would have had a limited impeachment effect.

II.

Defendant next contends that the circuit court erred in failing to sustain his motion to dismiss because a witness who would have testified favorably to him, Jose Corral, was deported prior to trial. Defendant draws an analogy from this situation to cases holding that where evidence is destroyed or lost while in the control of the State, the prosecution bears a heavy burden to show that such destruction was necessary in order to avoid sanctions such as dismissal. (See People v. Taylor (1977), 54 Ill.App.3d 454, 458, 12 Ill.Dec. 76, 369 N.E.2d 573; People v. Dodsworth (1978), 60 Ill.App.3d 207, 210, 17 Ill.Dec. 450, 376 N.E.2d 449.) In view of defendant's concession that the Federal government, not the State, deported the witness, the State maintains that it cannot be sanctioned for withholding evidence never in its possession. (See People v. Spurlark (1979), 74 Ill.App.3d 43, 57, 29 Ill.Dec. 657, 392 N.E.2d 214.) Defendant nevertheless contends that the State had an affirmative duty to ensure the continued availability of the witness.

The United States Supreme Court considered constitutional ramifications of the deportation of a defense witness in United States v. Valenzuela-Bernal (1982), 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193. The absence of such testimony would warrant sanctions where a defendant makes " * * * a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses" and "only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact." 102 S.Ct. at 3449-50.

Applying these principles to the instant facts, defendant's argument must be rejected. Defendant made no showing as to the substance of the deported witness' testimony; the circuit court thereby was left to speculate as to whether this testimony would have been material and favorable. Assuming, arguendo, that the witness' testimony would have been favorable to defendant, as a passenger in defendant's car his testimony, at best, would have corroborated that already presented by defendant and Gonzalez. Such testimony would have been "merely cumulative" and, under the Valenzuela-Bernal guidelines, insufficient to warrant sanctions. See also, United States v. Schaefer (11th Cir.1983), 709 F.2d 1383, 1384-85.

III.

Defendant also assigns error to the circuit court's denial of his motion for a mistrial after the prosecutor, allegedly aware that one passenger had been deported, inquired of two witnesses, McDuffey and Gonzelez, as to the number of occupants in defendant's auto. Such inquiry, defendant maintains, was an impermissible comment on defendant's failure to call a witness, citing People v. Beller (1979), 74 Ill.2d 514, 526, 25 Ill.Dec. 383, 386 N.E.2d 857, for the proposition that it is improper for the State to comment on defendant's failure to call a non-alibi witness. In Beller, the prosecutor had made such remarks in closing argument. Although disapproving of such commentary, the supreme court nevertheless found the remarks harmless under the circumstances of the case.

In the case sub judice, the circuit court sustained defendant's objection each time the question was asked. Following defendant's oral motion for mistrial, the court instructed the jury to disregard the question when it was first asked. No similar motion was made as to the second question. Further, the improper comment was not stated directly as in Beller, but was merely inferable from the questions. The questions were never answered, since defendant's objections to them were...