People v. Harmon , 194 Ill. App. 3d 135 ( 1990 )

JUSTICE MANNING,

dissenting:

I must respectfully dissent. I would reverse this case and remand for a new trial.

I believe the trial court erred by joining the offenses of mob action and battery with the murder charge and by allowing the State to call the codefendants as witnesses in the presence of the jury, notwithstanding that both parties and the court knew codefendants intended to invoke their constitutional privilege against self-incrimination.

While the decision to sever separate charges is a matter within the sound discretion of the trial court (People v. Harris (1986), 147 Ill. App. 3d 891, 894-95, 498 N.E.2d 551), within the instant factual matrix, it is my opinion that the court abused its discretion. This opinion is based on the weakness of the State’s case combined with the prejudicial joinder of charges that had no common links. The statute provides, inter alia, that there may be a joinder of offenses in a single charge “in a separate count for each offense if the offenses charged *** are based on the same act or on two or more acts which are part of the same comprehensive transaction.” Ill. Rev. Stat. 1985, ch. 38, par. Ill — 4(a).

The majority, in justification for its finding that the court did not abuse its discretion, cites to our previous decision in the related case of People v. Patterson (1986), 140 Ill. App. 3d 421, 488 N.E.2d 1283. The distinction in the facts of these two cases is the relevant consideration that should support an opposite conclusion as to defendant Carl Harmon.

While on the basis of the record there is no doubt that Patterson and Thomas were present both at the 1623 Club and at the scene of the murder, it is less clear that Carl Harmon was present at both locations. The victim of the battery initially was unaware that defendant participated in or was present at the battery and mob action, although other witnesses attested to his presence. The witnesses to the murder saw only three people, and three people had at the time of trial been convicted of the murder — Thomas, Patterson and McCune. McCune, an accomplice witness, was the only person to place defendant at the murder scene. McCune’s testimony is strongly clouded by several factors. He admitted to being a perjurer; he was the recipient of a three-year sentence as opposed to, at a minimum, a 20-year sentence in exchange for his testimony; fingerprints secured from the car of the murder victim were not those of defendant, even though the accomplice witness testified that defendant went to the car and removed the key from the ignition; and most significantly, McCune had told his attorney that he was under the influence of alcohol and drugs when he gave his statement to the assistant State’s Attorney.

In light of the facts as briefly outlined above, it is my view that joinder of the battery and mob action charges with the murder charge was extremely prejudicial and constitutes reversible error. The clear purpose of utilizing the two misdemeanor charges was to demonstrate defendant’s propensity to commit crimes. While such a joinder would be appropriate if it was to show common scheme, plan, design or mo-dus operandi (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489), the gang fight occurring at the party and the murder of Kevin Jackson were not connected in any way. The murder victim was not at the scene of the battery. The two occurrences took place at different locations and at different times and between different people. While it is true that in both incidents gang members of two rival groups were involved, there is no clear cut link insofar as this defendant is concerned.

In light of the potential for confusion by the jury of the facts in each incident, it is my view that the court failed to balance the probative value of the evidence with the degree of prejudice that could result from the admission of other crimes evidence. See People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.

While several witnesses testified that Carl Harmon participated in the battery and was earlier in the company of Patterson, Thomas and McCune, and the jurors were well aware that Patterson and Thomas had been convicted of the murder, and McCune of concealing a murder, no inference should be permitted that because Carl committed the misdemeanors and was in the company earlier of Patterson and Thomas and McCune, he likewise committed the murder.

The testimony presented by the State regarding the batteries severely prejudiced defendant because the jury repeatedly heard defendant’s name mentioned in association with men they knew had already been convicted of the victim’s murder.

The defendant’s argument that the probative value of the evidence is outweighed by the prejudice to the defendant and that evidence of separate offenses admitted in this trial would not have been admitted in separate trials is much more persuasive.

The defendant further contends that the court committed reversible error by allowing the State to call the defendant’s two codefend-ants when they had earlier, out of the jury’s presence, indicated they would invoke their privilege against self-incrimination. Our supreme court has steadfastly condemned the practice of calling a codefendant as a witness where the witness has indicated an intent to invoke his or her privilege against self-incrimination. People v. Myers (1966), 35 Ill. 2d 311, 334, 220 N.E.2d 297.

In People v. Myers, the defendant was convicted of murder and sentenced to death after a jury trial. On appeal, the defendant contended that the trial court committed error by disallowing him to call his accomplice as a witness in surrebuttal. The court upheld the trial court’s decision, reasoning that it was apparent to the trial court that the accomplice would invoke the privilege if she were called to the witness stand. The court viewed such a practice as being prejudicial to the defendant while adding little material evidence. Myers, 35 Ill. 2d at 334.

In the instant case, the record reveals that at the time of the trial in the case at bar, while the two codefendants had already been convicted, there was pending on behalf of each one a petition for leave to appeal. The record further reflects that the jury was thoroughly familiar through trial testimony, with the fact that the two codefendants had been convicted and that they both shared the same gang affiliation with the defendant. The trial court acknowledged that it would have been error to allow the witnesses to be called to the stand knowing that they intended to invoke their privilege. Notwithstanding that ac-knowledgement, the court permitted the State to call the witnesses in the presence of the jury, necessitating an objection by defense counsel which was sustained. The court offered no explanation to the jury after announcing that the State would be precluded from calling the witness.

The State argues that it is a sufficient safeguard from any adverse inference if the court precludes such witnesses from having to invoke the privilege in the jury’s presence. I do not believe the cases cited by the State should so narrowly be construed. The State alternatively suggests that if it is error, it is harmless and cites to Namet v. United States (1963), 373 U.S. 179, 10 L. Ed. 2d 278, 83 S. Ct. 1151, which used the rationale that any inference is a mere replication of what the jury has already inferred. In Namet v. United States (373 U.S. at 189, 10 L. Ed. 2d at 285, 83 S. Ct. at 1156), the United States Supreme Court found that the effect of the witness’ invocation of the fifth amendment privilege was minimized by the fact that other evidence adduced at trial provided the same inference. However, what the State fails to point out is that there was a dearth of evidence leading to such inferences in the instant case.

It is my view that any possibility that the jury, by virtue of the State’s actions, could reach an adverse inference constitutes severe prejudice and is reversible error, especially when we consider that the evidence is not in any respects overwhelming and this is a close case at most. The manner in which the State conducted its case in this connection appears to me to have been a flagrant and conscious attempt to structure its case out of adverse inferences predicated on the use of testimonial privilege. Since no explanation was given to the jury after they were called by the State and the court refused to allow them to take the stand, the jury could certainly have logically inferred that the witnesses were willing to testify for the State but that the court was preventing their testimony from being offered. Another logical inference is that the State would not call anyone as a witness who would testify adversely to its interests.

Accordingly, for the foregoing reasons, I would reverse the defendant’s conviction and remand for a new trial.