People v. Bramlett

JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant appeals from his conviction and sentence for armed violence (720 ILCS 5/33A — 2 (West 1992)) alleging (1) the trial court erred in denying a continuance to secure the presence of an alibi witness; (2) he is entitled to a new trial based on the prosecutor’s reference to the absence of defendant’s alibi witnesses; and (3) the court abused its discretion in allowing impeachment of defendant with his prior convictions.

Following return of the information, the defendant filed an answer to the State’s pretrial discovery order on October 20, 1993, indicating he would rely on an alibi defense and might call William Matthews and Randy Hines to testify as to his whereabouts at the time of the offense. On November 12, 1993, defendant issued a subpoena for William Matthews which had not been served by the time of trial on November 22, 1993, because Matthews could not be found. On that date, defendant filed a motion for a continuance, indicating Matthews had an outstanding arrest warrant on unrelated charges and he believed Matthews would be apprehended by the time the case was again set for trial. Defendant’s counsel stated that he had interviewed Matthews, who would testify that "the defendant was at [home] rather than at the scene of this shooting.” The prosecutor stated that when Matthews had been identified as an alibi witness in October, the Decatur police had unsuccessfully attempted to locate him for an interview and there was no indication he would ever be available as a witness. The court denied the motion and the trial commenced.

At trial, William Broadnax, the owner of Mr. B’s liquor store, testified that shortly before midnight on July 23, 1993, defendant came to his store and they got into an argument regarding employment. Broadnax had known the defendant since defendant was a child due to Broadnax’ relationships with defendant’s aunt and father. As defendant left the premises he threatened Broadnax that he was going to "get something to blow the damned place up.” Broadnax called the Decatur police but when an investigator arrived, defendant could not be located and the officer left.

Broadnax testified that while he was totalling up the receipts, sometime before 2 a.m. on July 24, he heard a gunshot and looked out the drive-up window into the well-lit parking lot. He saw defendant with a long gun in his hands straddling the fence separating the parking lot from the adjacent residential area. He then saw defendant fire a second shot at the passenger side of Broadnax’ red pickup truck, which was parked in the lot immediately across from the drive-up window. Defendant then climbed off the fence and fled. When Broadnax inspected his truck, he found two gunshot holes in the door and window.

Randy Hines, who admitted a conviction for attempt (burglary) in 1987, testified on behalf of the defendant. He stated that in the early morning hours of July 24 he was visiting at defendant’s house, which was just around the corner from Mr. B’s. Shortly before 2 a.m., Hines drove to Mr. B’s to purchase liquor. As he left the store’s parking lot through the alley, he heard a shot and ducked down. After hearing a second shot, he looked and saw a lot of people lying on the ground in the parking lot, but he did not see the defendant. He returned to the defendant’s residence and defendant was there.

The defendant testified that he had gotten into an argument with Broadnax at Mr. B’s shortly after midnight on July 24, after which he returned to his home. He denied making any threats or ever returning to Mr. B’s later that morning. He stated Mr. B’s was less than a three-minute walk from his home, where he had been drinking and playing cards with friends. On direct examination, he identified those friends as "Allen,” "Maurice,” Randy Hayes and Hines. On cross-examination, he stated those present included Randy Hayes, "Maurice or Torice,” "Clarence,” and his stepfather, William Matthews.

At the instruction conference following the close of the State’s case, the prosecutor indicated that he intended to impeach defendant with evidence of his prior convictions for aggravated battery and unlawful restraint should he testify. Defendant’s counsel objected, stating that neither conviction impacted defendant’s veracity and both were unduly prejudicial. Without analysis, the court held the prior convictions would be admitted and, following the close of both the State’s and defendant’s case, the judge informed the jury as to the nature of both convictions.

Defendant first argues the trial court erred in denying his request for a continuance to secure the presence of Matthews as an alibi witness since he was diligent in attempting to secure his presence by issuing a subpoena as soon as the trial date was set and by disclosing Matthews’ identity in sufficient time to secure his statement. The State points out that the Decatur police had unsuccessfully attempted to locate Matthews since October and, due to the outstanding arrest warrant, there was no indication Matthews would ever be available as a witness. Moreover, he still had not been located by the time of the hearing on post-trial motions, six weeks after trial. The State also notes that the offer of proof on Matthews’ anticipated testimony failed to indicate whether Matthews was personally present with defendant at the time of the shooting and so lacks materiality for affording an alibi defense. During his trial testimony, defendant stated he had been at his home with four additional persons at the time of the shooting, any one of whom might have testified to the same purported defensive matters. See People v. Ladas (1957), 12 Ill. 2d 290, 296, 146 N.E.2d 57, 60.

The denial of a request for a continuance sought to secure the presence of a witness should be reviewed under the following factors: (1) whether defendant was diligent in attempting to secure the witness for trial; (2) whether defendant shows that the testimony was material and might affect the jury’s verdict; and (3) whether the failure to grant the continuance would prejudice the defendant. (People v. Ward (1992), 154 Ill. 2d 272, 307, 609 N.E.2d 252, 266.) The granting or denial of such a motion lies in the sound discretion of the trial court. (People v. Cobb (1983), 97 Ill. 2d 465, 477, 455 N.E.2d 31, 36.) The denial of a motion for continuance is not an abuse of discretion where there is no reasonable expectation that the witness will be available in the foreseeable future. People v. Watts (1990), 195 Ill. App. 3d 899, 917, 552 N.E.2d 1048, 1060 (defendant given five days to locate a witness before trial and the court denied a continuance where there were clear indications she was unwilling to testify and had purposely absented herself from the jurisdiction).

A reviewing court can sustain the decision of the trial court on any grounds called for by the record, regardless of whether the circuit court relied on those grounds. (Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148, 478 N.E.2d 384, 389.) The facts support the trial court’s denial of defendant’s motion for a continuance. Matthews had not been apprehended from October through the post-trial hearing in late December 1993. Defendant did not subpoena any other of the witnesses who purportedly could have testified to defendant’s whereabouts at the time of the offense nor did he provide the State access to them by revealing their full names or addresses. The trial court did not abuse its discretion in denying the motion.

Defendant next argues he is entitled to a new trial because the prosecutor referred to the absence of his alibi witnesses. The State contends the issue is waived because defendant failed to object to the prosecutor’s sole reference to the "long list” of alibi witnesses disclosed for the first time during defendant’s direct testimony, and to the prosecutor’s closing argument referring to that list of witnesses followed by the oblique statement "Well, what happened?” We agree with the State that the issue may be deemed waived (see People v. Cloutier (1993), 156 Ill. 2d 483, 507, 622 N.E.2d 774, 786); however, we find the statements did not constitute error.

While it is improper for the State to comment unfavorably on the defendant’s failure to produce a witness equally accessible to the State, where the witness has material alibi evidence more accessible to the defendant the State may properly comment on defendant’s failure to call him. People v. Melton (1992), 232 Ill. App. 3d 858, 861, 596 N.E.2d 1246, 1249; see People v. Blakes (1976), 63 Ill. 2d 354, 358-60, 348 N.E.2d 170, 173-74 (it was not error for the prosecutor to cross-examine the defendant on the identity of patrons at a club where he professed to be at the time of the offense or to comment that the persons identified had not been called to testify).

Here, the prosecutor never directly referred to the absence of Matthews (a witness potentially inaccessible to both parties) but merely to the "long list” of alibi witnesses defendant had referred to in his direct testimony. Since defendant referred to those witnesses by their first names only and disclosed neither an identifying address nor phone number, it must be presumed they were accessible only to him (see Melton, 232 Ill. App. 3d at 861, 596 N.E.2d at 1249), and the prosecutor’s questions and comments did not constitute error.

Defendant last contends the trial court improperly allowed impeachment of his testimony by the introduction of his prior convictions for aggravated battery and unlawful restraint, because both are violence-related crimes, rather than crimes impacting his veracity, and their admission increased the likelihood the jury -viewed the convictions as evidence of a propensity to commit crimes. Defendant contends such indiscriminate admission has been disapproved in People v. Williams (1994), 161 Ill. 2d 1, 641 N.E.2d 296 (prior conviction for voluntary manslaughter erroneously admitted at defendant’s trial for murder).

As an initial matter, the State contends the issue is waived for defendant’s failure to preserve it in his post-trial motion. (See Cloutier, 156 Ill. 2d at 507, 622 N.E.2d at 786.) However, due to the potential for unfairness, we elect to review the matter under, the plain error doctrine pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).

In People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, the supreme court repudiated the then-prevailing practice which obligated the trial judge to admit evidence of all prior convictions for impeachment purposes, concluding instead that admission was discretionary if (1) the crime is punishable by death or imprisonment in excess of one year (a felony), or (2) the crime involved dishonesty or false statement regardless of the punishment, unless (3) in either case the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.) In Williams, the supreme court revisited the Montgomery rule in light of subsequent case law, criticizing an apparent "regression toward allowing the State to introduce evidence of virtually all types of felony convictions for the purported reason of impeaching a testifying defendant” (Williams, 161 Ill. 2d at 38-39, 641 N.E.2d at 311-12) and often summarily justified by the "rationale that a felony of any type evinces a disrespect for societal order and thus adversely affects the defendant’s veracity” (Williams, 161 Ill. 2d at 39, 641 N.E.2d at 312). The Williams decision decried the "mechanical application” of this premise, emphasizing that the Montgomery focus was on crimes impacting the defendant’s testimonial credibility.

While dicta in Williams suggests that prior felonies unrelated to veracity must be relevant for some proper purpose other than impeachment, the court nevertheless reaffirmed the Montgomery principles (pursuant to which the first prong permits the use of any prior felony conviction for impeachment purposes), as the law to be applied in this State. (Williams, 161 Ill. 2d at 41, 641 N.E.2d at 313.) Since the genesis of the Montgomery rule arose in the context of impeachment evidence (see 725 ILCS 125/6 (West 1992); Williams, 161 Ill. 2d at 36, 641 N.E.2d at 310), it is unclear from the Williams analysis what other "proper purpose” there could be. While prior offenses are independently admissible where relevant for some purpose other than to show the defendant’s propensity to commit crime, such as to prove modus operandi, criminal intent, identity, motive, or absence of mistake (see People v. Illgen (1991), 145 Ill. 2d 353, 364-65, 583 N.E.2d 515, 519), they may be admitted as substantive evidence.

We adhere to our previous interpretation of Williams expressed in People v. Maxwell (1995), 272 Ill. App. 3d 57, 62, 650 N.E.2d 298, 301, wherein we concluded the Williams court was expressing concern about the indiscriminate admission of all prior felonies for impeachment purposes absent application of the critical balancing test mandated by Montgomery. Here, since there is no evidence of record that the trial court weighed the probative value of the defendant’s prior convictions against their prejudicial effect, it erred in admitting them as evidence for purposes of impeaching the defendant’s credibility.

Nevertheless, even though we conclude admission of defendant’s prior convictions was error, in light of the overwhelming evidence of defendant’s guilt, we find the error was harmless. The defendant was well-known by the victim, who observed him in a brightly lit area and saw him fire the second shot into the victim’s truck. Less than two hours prior to the incident, defendant had come to the victim’s liquor store and threatened to blow the place up. Defendant’s witness failed to provide an alibi, since he stated only that he did not see defendant at the liquor store after the shots were fired and that defendant was at his residence, located a half block from the scene of the offense, when the witness returned.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

ENECHT, P.J., concurs.