People v. Nance

• Decision Date: 15 October 1981
• Docket Number: No. 16971,16971
• Citation: 56 Ill.Dec. 435,427 N.E.2d 630,100 Ill.App.3d 1117
• Parties: , 56 Ill.Dec. 435 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael NANCE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 630

427 N.E.2d 630

100 Ill.App.3d 1117, 56 Ill.Dec. 435

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael NANCE, Defendant-Appellant.

No. 16971.

Appellate Court of Illinois, Fourth District.

Oct. 15, 1981.

Daniel D. Yuhas, Deputy State Appellate Defender, James G. Woodward, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Basil G. Greanias, State's Atty., Decatur, Robert J. Biderman, Deputy Director, Denise M. Paul, Staff Atty., State's Attys. Appellate Service Com'n, Springfield, for plaintiff-appellee.

MILLS, Justice:

Armed robbery.

Jury trial.

Guilty.

Extended term-45 years.

We affirm.

The facts are somewhat prolix.

At Nance's jury trial, John Fiorino testified that as he rode his motorcycle down a Decatur street on August 5, 1980, a man on a bicycle stopped him. Two men seated across the street and about 25 to 30 feet away then called Fiorino over to them. As he pulled into a vacant parking lot, they walked up behind him and one-whom Fiorino identified as defendant-put a handgun to the back of his head and demanded money and cocaine. Fiorino stated that he had neither. However, defendant removed Fiorino's wristwatch and either defendant or his companion took Fiorino's wallet.

In a photo identification, Fiorino was unable to state with certainty that defendant was his assailant. However, in a lineup two days after the armed robbery, he identified defendant as the gunman and Julius Pettis as the man on the bicycle.

Julius Pettis was originally charged with armed robbery in connection with this incident but was later given immunity in exchange for his testimony against defendant. Pettis testified that he came up to Fiorino and complimented him on his motorcycle, whereupon Fiorino asked whether Pettis knew anyone who wanted to buy some cocaine. After going to speak to his brother Dave and defendant, Pettis rode his bicycle back to Fiorino and told him to go across the street to where Dave and defendant were. Pettis testified that he saw defendant put a handgun near Fiorino's ear and saw defendant go through Fiorino's saddlebags after Fiorino had run away.

On cross-examination, Pettis admitted lying repeatedly to investigating officers concerning this incident. He acknowledged that, contrary to his trial testimony, he had told the officers that he had seen defendant and Fiorino together earlier in the evening, that he was some distance down the street when the armed robbery occurred, and that Dave Pettis was the gunman. He testified that he had lied "quite a lot" to a detective.

Defendant's attorney, Gary Geisler, then showed Pettis defendant's Exhibit 2, which Pettis admitted having signed. However, he denied that the document had ever been read to him. Pettis was then shown defendant's Exhibit 1, which he also admitted signing. However, Pettis stated that Geisler had read Exhibit 1 to him before he signed it. (Exhibit 1 was simply a typewritten version of Exhibit 2, which Geisler had written in longhand at the time he interviewed Pettis on November 5, 1980, in the Macon County Jail.)

After Pettis became openly hostile to Geisler, proceedings were held outside the presence of the jury. The trial court learned that at the time Geisler interviewed Pettis in connection with this case, Pettis was incarcerated on charges arising out of the same incident and was represented by appointed counsel. Pettis was not granted immunity from prosecution until November 10, 1980, five days after the interview; he signed Exhibit 1 on November 14. Exhibit 1, which Geisler himself prepared, consists of a series of questions and answers in which Pettis, inter alia, stated (1) that he could see only the tops of the heads of Fiorino's assailants and was not certain they were defendant and Dave Pettis, and (2) that he did not see either of them with a gun.

It was obviously Geisler's intention to impeach Pettis with Exhibit 1 as a prior inconsistent statement. Ruling on the State's objection to the attempted impeachment, the trial court said:

"Number one, the question is improper as an attempted impeachment without any foundation whatsoever. To impeach a witness you have to lay foundation as to time and place, who was present, say the least. Number two I sustained it because if he should answer no, then it would be necessary for you to testify to complete the impeachment, and that, of course, I was trying to avoid because when you become a witness you no longer are competent as counsel. You can't have a dual role. You'd have to withdraw."

Before allowing Geisler to proceed with an offer of proof, the court said:

"But I'm not going to say that counsel for one co-defendant can interview another co-defendant in the county jail, prepare a document, have him sign it and then impeach him with it as to what he signed. That's the position the Court is taking, that is not correct procedure and nor is it ethical."

During the offer of proof, Pettis stated that he had read through a copy of Exhibit 1 and that Geisler had also read it to him prior to his signing it. Pettis testified as follows concerning the time when the original interview took place:

"Q. Did we discuss this occurrence you had observed on August 5?

A. We discussed it but, you know like he told me, you know he said that, you know I won't get no perjury or nothing, he just said give him a statement. So I gave him a statement.

Q. Did I ask you these questions and did you give me these answers?

A. Yes, you asked me-.

Q. Did I promise you that you would never get charged with perjury in this case?

A. Yes, you said that I wouldn't be charged with no perjury and yes, then I gave you the statement.

Q. Are you saying that this statement is all lies?

A. Yes."

The trial court denied the offer of proof and sustained the State's objection to the attempted impeachment.

Gordon Bell (a Decatur police detective) recounted a statement defendant had made to him: defendant said that while he and Dave Pettis were in the area of Church and Cerro Gordo Streets, Julius Pettis came by and told them that he knew someone who wanted to sell some cocaine. Dave told Julius to bring that person, and in a few minutes Julius and Fiorino returned. After Fiorino pulled into the parking lot, Julius and Dave told him to shut off the motorcycle's lights. Julius took the motorcycle keys, and Dave held a gun to Fiorino's head and told him they wanted cocaine. Julius searched Fiorino's pockets and saddlebags, but Fiorino then said the cocaine was in his left sock and Julius took it.

The only witness for the defense was Reginold Penermon, who testified that when he saw Fiorino the night of August 5, Fiorino said he was going to get some cocaine. Later, he saw Fiorino on his motorcycle in a vacant parking lot in the area of Church and Cerro Gordo Streets. Dave and Julius Pettis were standing beside him, and Dave was holding a gun. Defendant was in the street next to the parking lot, not in the lot or next to Fiorino's motorcycle. Penermon saw Fiorino run away and looked again to see the Pettises also fleeing and defendant walking away.

On cross-examination, Penermon testified that he is also known as "Barbara," that he had been convicted of theft, and that, at the time of trial, he had been defendant's cellmate a little over a month. He stated that defendant is larger than he is and that he and defendant would continue to occupy the same cell after the trial. The following colloquy then occurred:

"Q. Isn't it true that if you don't testify, that if you testify implicating Michael Nance in this crime that you've got hell to pay when you go back to that cell?

A. No.

MR. GEISLER: Objection, Your Honor.

THE COURT: He may answer.

A. No, I don't think so."

The jury found defendant guilty of armed robbery. At his sentencing hearing, the State showed that on March 1, 1978, defendant had pled guilty to armed robbery. Based on that factor, the trial court sentenced him to an extended term of 45 years.

I.

Defendant's principal contention on appeal is that the trial court should have allowed defense counsel to impeach Julius Pettis with the prior inconsistent statement he had given to Geisler. As the trial court observed, a witness can be impeached with a prior inconsistent statement only if the attorney seeking to impeach him first directs his attention to the time, place, and persons present when the statement was made and is advised as to the substance of the statement. (People v. Smith (1980), 78 Ill.2d 298, 35 Ill.Dec. 761, 399 N.E.2d 1289.) The State argues that defense counsel failed to lay such a foundation because he did not specify the particular occasion on which the interview occurred.

The purpose of the foundation requirement for admission of a prior inconsistent statement is to give a witness an opportunity to explain the statement and to protect him from unfair surprise. (Smith.) If these purposes have been fulfilled, it is not required that all the conventional elements of foundation be presented. (People v. Henry (1970), 47 Ill.2d 312, 265 N.E.2d 876; People v. Beasley (1977), 54 Ill.App.3d 109, 11 Ill.Dec. 806, 369 N.E.2d 260.) In the case at bar, there can be no question that Pettis was aware of what Geisler was questioning him about. He had ample opportunity to explain the statement, and he clearly was not surprised. (Furthermore, the laying of this foundation occurred outside the presence of the jury, making it even less critical that the formal procedures be followed.) There was, then, no weakness in the foundation concerning time, place, and persons present.

The parties are in some disagreement concerning what further foundation is necessary to admit a prior inconsistent written statement into evidence. In Ill. Central R.R. Co. v. Wade (1903), 206 Ill. 523, 69 N.E. 565, the court used language which suggested that if a witness merely admits that a document contains his signature, then the contents of that document...