People v. Nally

• Decision Date: 15 July 1985
• Docket Number: No. 2-84-0278,2-84-0278
• Citation: 89 Ill.Dec. 630,480 N.E.2d 1373,134 Ill.App.3d 865
• Parties: , 89 Ill.Dec. 630 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William NALLY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1373

480 N.E.2d 1373

134 Ill.App.3d 865, 89 Ill.Dec. 630

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William NALLY, Defendant-Appellant.

No. 2-84-0278.

Appellate Court of Illinois,

Second District.

July 15, 1985.

G. Joseph Weller, Office of the State Appellate Defender, Elgin, for defendant-appellant.

Robert J. Morrow, State's Atty., Geneva, Phyllis J. Perko, Raymond L. Beck, State's Attys. Appellate Service Com'n, Elgin, for plaintiff-appellee.

NASH, Presiding Justice:

After jury trial defendant, William Nally, was convicted of the offense of unlawful use of weapons (possession of a firearm in a place licensed to sell liquor) (Ill.Rev.Stat.1983, ch. 38, par. 24-1(a)(8)). As the offense occurred within five years of defendant's release from the penitentiary it became a class 3 felony and he was sentenced to an extended term of 7 1/2 years imprisonment. He appeals, contending (1) the evidence was insufficient to establish guilt; (2) the trial court erred in barring defendant from calling a witness and barring defendant from testifying to admissions of the witness; and, (3) that the sentence imposed was an improper double enhancement of a prior conviction and an abuse of discretion.

Defendant was tried twice on this charge as the first jury was unable to agree upon a verdict in the first trial and a mistrial was declared in September 1983. In the second trial held in December 1983, Kane County Deputy Sheriffs Kenneth Ramsey and Pete Burgert testified they, and other officers, entered the South End Tavern near Elgin at 10:30 p.m. on April 23, 1983, to make a routine check for minors drinking. The officers were in uniform and when they entered the bar they saw defendant, who was seated there between a man and woman, make furtive movements by placing his hands near his waist as if to remove something from it and then leaning towards the bar with his arms moving downward as he momentarily hunched over the bar. The officers then heard a "thunking" noise and defendant sat up straight on the bar stool. The other people at the bar sat still during this time with their hands on the bar. The officers immediately moved defendant from his stool and found a 9 mm. Smith and Wesson revolver, which was loaded with dumdum bullets, lying against the bar footrest in front of defendant's stool. Subsequent forensic examination of the weapons disclosed no identifiable fingerprints on it or the bullets. No other evidence was presented relating to ownership or possession of the gun.

The State and defendant stipulated that the tavern was duly licensed to sell liquor and that defendant, after having previously been convicted of a felony, had been released from the penitentiary on December 10, 1980, a time within five years of the present offense. See Ill.Rev.Stat.1983, ch. 38, par. 24-1(b).

Defendant testified, denying he had ever seen or possessed the gun found in the South End Tap. He stated that shortly before his arrest he had experienced an "insulin reaction" and blacked out for a period of time (he requires two shots of insulin each day). Nally testified he did not remember the officers entering the tavern, but only that they grabbed him and accused him of having a gun. He stated the insulin reaction had started while playing pool and Carol Steffen, the bartender, had helped him to his seat at the bar and attempted to feed defendant a candy bar to aid his condition.

Carol Steffen and Mr. and Mrs. Jack Cobb, who were defendant's friends, testified he had suffered an insulin reaction that night and Steffen was trying to help him when the officers entered. None of these persons saw anyone in possession of a gun that night. Evidence was also presented that Jack Cobb had been previously convicted of felony theft and that when defendant left the tavern in custody of the officers he did not need assistance.

Before defendant testified, his counsel advised the trial court, in chambers, that he had subpoenaed and intended to call as a witness one Lloyd Greenley, a bar patron who had been sitting next to defendant when the officers entered. Counsel stated that Greenley had come to his office with defendant at some time prior to this trial and had told counsel that he was willing to testify that the gun found in the bar belonged to him. The State's Attorney suggested that the judge advise Greenley of his privilege against self-incrimination and the court did so. Greenley thereupon informed the judge that he had already retained a lawyer and had been advised by his counsel not to answer any questions "under the Fifth Amendment" and that he would invoke that privilege if called upon to testify as a witness. As a result, the trial court ruled, over defendant's objection, that the witness could not be called before the jury.

When defendant testified the following colloquy occurred in his cross-examination by the State:

"Q. [by prosecutor] And you asked them [the Cobbs] to testify in this case, right?

A. [by defendant] I have talked to them, yes.

Q. And the same would hold true for Mr. Greenley, correct?

A. I have talked to him, yes.

Q. And the other people in the bar that night were your friends, too, right?

A. Pretty much."

The defense rested after defendant's testimony but later sought to reopen its case so that defendant could testify to Greenley's purported admission the gun was his, arguing that the foregoing cross-examination by the State had opened the door for it. The trial court declined to permit defendant to reopen his case for that testimony, holding it to be inadmissible hearsay.

(1)

Sufficiency of the evidence

Defendant contends first that the evidence was insufficient to sustain the verdict as no one testified they saw him with the gun and no other evidence, such as fingerprints or proof of ownership, linked defendant to the gun.

A reviewing court will not ordinarily substitute its judgment for that of the trier of fact, whose function is to weigh the evidence, resolve any apparent conflicts or inconsistencies therein and assess witness credibility. (People v. Lanasa (1983), 113 Ill.App.3d 516, 521, 69 Ill.Dec. 567, 447 N.E.2d 1002; People v. Ortiz (1981), 96 Ill.App.3d 497, 501, 51 Ill.Dec. 921, 421 N.E.2d 556, appeal denied.) Only when a judgment is so improbable or palpably contrary to the evidence as to raise a reasonable doubt of guilt will a reviewing court reverse it. (People v. Fox (1983), 114 Ill.App.3d 593, 597-98, 70 Ill.Dec. 387, 449 N.E.2d 261, appeal denied.) Of course, a defendant need not be observed in possession of a gun if the evidence circumstantially proves he had possessed it. People v. Washington (1975), 35 Ill.App.3d 92, 93-94, 341 N.E.2d 39.

Having closely reviewed the evidence, we conclude that the question of defendant's possession of the gun was for the jury and we will not reverse its judgment. The decisions of People v. Archie (1969), 105 Ill.App.2d 211, 245 N.E.2d 59, and People v. Evans (1966), 72 Ill.App.2d 146, 218 N.E.2d 781, which defendant urges as support for reversal of his conviction, do not persuade us otherwise.

In Archie, defendant was detained by a school official in a teacher conference room until the police arrived after a student had said he had been selling marijuana. A policeman arrived and, as he talked to the school official, he observed defendant take his hand out of his pocket and hold it straight down; the officer walked to where defendant had been standing and found on the floor a marijuana cigarette two to six inches from defendant's left side. Because defendant's removing his hand from his pocket was not an uncommon gesture, he made no other suspicious movements and his lone action did not suggest he had thrown something to the floor, and the officer failed to testify which arm had been lowered, whereas he found the contraband close to the defendant's left side, the court reversed the conviction for marijuana possession. (People v. Archie (1969), 105 Ill.App.2d 211, 213-15, 245 N.E.2d 59.) But here, the deputies observed a series of suspicious, furtive movements by defendant while the others at the bar kept their hands upon it, and, unlike in Archie, there was the noise heard by the deputies after defendant's movements which supports a conclusion that the gun was dropped to the floor and was not lying there earlier.

People v. Evans (1966), 72 Ill.App.2d 146, 218 N.E.2d 781, is similarly distinguishable. The defendant in Evans, who was sitting at the bar in a tavern, left his seat and hurried towards the men's room just as two policemen entered; based on an informer's tip, they were looking for a man thought to be possessing drugs. The officer found two packages containing drugs stuck to the underside of the bar with chewing gum. The court reversed defendant's conviction for possession of those drugs because, despite his suspicious conduct of leaving when he saw the policemen, there was no evidence of how long the drugs had been under the bar and they could have been put there by anyone at any time. (72 Ill.App.2d 146, 147-49, 218 N.E.2d 781. Unlike these cases, the evidence here was sufficient to support the verdict. See People v. McKnight (1968), 39 Ill.2d 577, 237 N.E.2d 488; People v. Richardson (1961), 21 Ill.2d 435, 172 N.E.2d 801; People v. Washington (1975), 35 Ill.App.3d 92, 341 N.E.2d 39.

(2)

Procedural and evidentiary rulings

We next consider defendant's assertion the court erred in barring him from calling Lloyd Greenley after Greenley advised the court he would invoke his Fifth Amendment privilege against self-incrimination if called to testify.

It has been often held that it is improper for a party to call a witness whom he has reason to believe will invoke this privilege before the jury, and a trial judge does not err when he precludes calling such a witness. People v. Myers (1966), 35 Ill.2d 311, 334, 220 N.E.2d 297; People v. Crawford Distributing Co. (1979), 78 Ill.2d 70, 34 Ill.Dec. 296, 397 N.E.2d 1362; ...