People v. Miller

                                             Fourth Division
                                             August 7, 1997









No. 1-95-3007

THE PEOPLE OF THE STATE OF ILLINOIS,    )    APPEAL FROM THE
                                        )    CIRCUIT COURT OF
               Plaintiff-Appellee,      )    COOK COUNTY.
                                        )
     v.                                 )
                                        )
JOSEPH MILLER,                          )    HONORABLE
                                        )    VINCENT BENTIVENGA,
               Defendant-Appellant.     )    JUDGE PRESIDING.


     PRESIDING JUSTICE WOLFSON delivered the opinion of the 
court:
     At some point in almost every criminal trial a prosecution
witness will be asked to look around the courtroom and determine
whether the perpetrator of the crime is present.  If and when the
witness points to the defendant, an important part of the State's
case falls into place.  The record reflects the identification.
The prosecutor can argue the force of a courtroom identification.
     In the case before us, the roles were reversed.  The defense
asked that a defense witness be allowed the opportunity to
identify the State's key witness.  The trial judge refused the
request.  We find that refusal deprived the defendant of a fair
opportunity to present his defense.  We reverse his conviction
for aggravated battery and remand the cause for a new trial.


FACTS
     Trial began with jury selection on June 27, 1995.  Evidence
was heard on June 28 and 29, 1995.  The State produced three
witnesses.
     The complainant, Robert McGee, testified that he owned his
own construction company.  On September 18, 1993, McGee said, he
went to a bar called Frank's Place on Howard Street in Chicago,
to meet with some friends.  At about 10:20 p.m., he left the bar
alone.  As he walked down the street he was approached by a large
black woman who asked him if he wanted a "date."  McGee said he
declined the offer and walked away.  As he turned the corner to
get to where his car was parked, however, he was attacked from
behind.  A man, later identified as Miller, grabbed the neck of
McGee's T-shirt, yanked him, and then pushed him to the ground. 
McGee testified that he lay flat on the ground on his stomach
while Miller held him down by pressing a knee into McGee's back. 
While kneeling on his back, Miller searched McGee's pants pockets
and took $60 in cash.  McGee said he had a small bruise on his
back after the encounter.  The State showed pictures of McGee's
back, depicting the bruise.
     When Miller released him, said McGee, Miller casually walked
away.  It was because of this casualness that McGee became
incensed.  He decided to follow his attacker.
     McGee said he saw Miller meet up with the woman who had
propositioned him earlier that evening.  Miller and the woman had
a "physical exchange," McGee said, though he could not see what,
if anything, happened between them. 
     When Miller and the woman came to Sheridan Road, they
separated.  McGee, who had been darting behind bushes and cars to
keep out of sight, saw a patrol car traveling along Sheridan
Road.  He flagged it down.  He explained to the officer what had
happened and then got into the squad car.  They patrolled the
area until they saw Miller walking along Howard Street.
     Officer Atkinson, the police officer in the squad car that
McGee hailed, testified that she stopped the car after McGee saw
Miller on the street and pointed him out as his attacker.  When
she approached Miller, he said, "I am a Kung Fu master.  I'll
snap you in two."  Miller was loud and threatening, so she pulled
out her service revolver and called for assistance.  Two
additional officers arrived on the scene.  Miller did not try to
escape, but did not cooperate with the officers as they tried to
arrest him and place him in the squad car.
     After Miller was arrested, Officer Atkinson said, she
patrolled the area in search of the woman.  Officer Atkinson said
she was looking for a large, black woman in a purple top but did
not see anyone who fit that description.
     At trial, while Officer Atkinson was testifying, Miller
became extremely agitated.  He called the officer a "liar" and a
"bitch" and refused to calm down.  Miller asked to be taken out
of the courtroom.  After a recess, Miller refused to come back
into the courtroom for the conclusion of the trial.
     Trial was moved to another courtroom that was equipped with
an audio system that allowed Miller to hear the testimony while
he remained in an adjoining cell.
     Officer Minogue, one of the officers who responded to
Officer Atkinson's call for assistance, was the last State
witness.  It was stipulated that he would identify Miller as the
man he arrested on September 18, 1993, on Howard Street.
     Officer Minogue testified Miller appeared very angry when he
was arrested.  He was making wild hand gestures, shouting, and
talking in a threatening manner.  Miller did not resist arrest,
but "stiffened" when they tried to handcuff him.  Miller did not
have $60 in cash on his person when he was arrested.
     The defense presented only one witness, Gail Page.  Page
testified that she was an assistant manager for the catering
service at Northwestern and had held that job for the last five
years.  She also said that she had known Miller and his family
for a number of years, although before September 18, 1993, she
had not seen Miller for several years.
     At about 10:20 p.m. on September 18, 1993, Page said, she
was standing on the corner of Bosworth and Howard Streets,
waiting for her cousin.  She was wearing blue jeans, a jeans
jacket, and a white top.  A man approached her.  She described
him as "five ten or eleven, dark complexion, male black.  I do
not know the age.  Maybe thirty-eight to forty.  Thin."  He asked
if she dated.  Page told the man she was married and was not
interested.  The man, she said, seemed "frantic."  He persisted
in following her as she tried to walk away.  He grabbed her arm.
     Page said she noticed Miller on the street and called to him
for assistance.  Miller came over and told the man to leave Page
alone.  The two men fought and Miller knocked the other man to
the ground.
     Page said she left the area because her blouse had been torn
and she was embarrassed.  She later learned that Miller had been
arrested, but never called the police to explain what had
happened.
     On cross-examination, Page said that after the incident she
saw the man who had approached her on September 18, 1993.  She
saw him at a local store, Queen's Pantry.  This man followed her
in a mustard colored car.  She also saw him in the courthouse on
the day she testified.  She said he was wearing shorts and had
been sitting outside courtroom Q.
     Defense counsel then asked if the complainant, McGee, could
be brought into the courtroom so that Page could identify him as
the man who had approached her.  The trial court refused.  The
court also denied defense counsel's request to have Page identify
McGee from one of the pictures that the State had taken of him.
     The State presented two witnesses in rebuttal.  Over
defendant's objection, the court allowed the State to present the
testimony of Detective Barron.  The detective testified that he
did not ask to see McGee's license for identification when McGee
came to the station to report the robbery.  The detective also
said that McGee told him he lived at Pratt and was a salesman at
Venture.
     McGee was recalled to the stand to rebut Page's testimony. 
He denied that he had tried to solicit a date from any woman on
the evening of September 18, 1993.  He also denied owning a
mustard colored car or following Page from Queen's Pantry.  He
was not asked to identify Page in the courtroom.
     After hearing argument and receiving instruction, the jury
began deliberations on the afternoon of June 29, 1995.  At 8:40
p.m., the court noted on the record that the jury had sent out a
note that a decision had been reached on one count, but it was
deadlocked on the second count.  It wanted to know if it had to
have a unanimous verdict on both counts.  The trial court sent
back a response in the affirmative, over the State's objection.
     The next entry in the record is dated June 30, 1995.  It
appears the jury resumed deliberations on this day.  After about
two hours, the jury returned verdicts on the two counts.  Miller
was found guilty of aggravated battery, but acquitted of robbery. 
Later, he was sentenced to six years imprisonment on the
conviction.
DECISION
1. Identification of the Complainant
     The controlling issue on appeal is the trial court's refusal
to call McGee into the courtroom so that Gail Page could identify
him as the man she said Miller hit in her defense.
     The jury had trouble deciding this case.  It deliberated
over parts of two days.  Finally, it reached an apparent
compromise.  It rejected McGee's claim he had been robbed by the
defendant, but accepted his account of the aggravated battery.
McGee was believed in part, disbelieved in part.
     Gail Page's credibility was critical to the success or
failure of Miller's defense.  Her testimony, if believed, would
support the defense claim that Miller was coming to the aid of
Page, who, she said, was attempting to fend off McGee's unwanted
advances.  McGee had admitted an encounter with a woman regarding
a "date," but accused the unidentified woman of soliciting him.
The issue was joined.   
     The jury had seen McGee and police witnesses point to the
defendant.  The record was made to reflect those identifications.
Yet, when Page testified, she was not allowed the opportunity
to identify McGee. 
     The jury did not know defense counsel had asked for the
confrontation.  It did know Page had referred to a man who was
"five ten or eleven, dark complexion, male black***maybe
thirty-eight to forty.  Thin."  That description did not fit
McGee, who described himself as a "big guy."  In fact, at a
sidebar conference concerning the defense request, the State
said:
          "Judge, the problem I have is that the description
     she has given does not fit [McGee].  He is not forty years
     old.  He is not five, ten.  He is six, three."
     McGee was somewhere in the courthouse.  He was readily
available, and, in fact, was called by the State as a rebuttal
witness.  Page had said she "never" would forget the face of the
man who grabbed her arm on September 18, 1993.
     The jury was left to wonder about Page's credibility.  Her
description of the man did not fit McGee.  Was she talking about
someone else?  Was she concocting the entire story?  McGee was
around, why didn't she point him out, the way State witnesses
pointed out the defendant?
     The trial court assumed, and the State now argues, that
everyone knew Page was talking about McGee.  The issue is not
whether the jury could reasonably conclude Page was talking about
McGee.  The issue is whether Page's account of what happened was
believable when compared to McGee's testimony.  It was the heart
of Miller's affirmative defense.
     That defense had been promised by defense counsel in opening
statement.  Because of the trial court's ruling, he could not
deliver.
     We know that inaccuracies or discrepancies in a witness's
description, although not fatal to identification, will reduce
the witness's credibility and the reliability of the
identification.  People v. Simpson, 172 Ill. 2d 117, 141, 665 N.E.2d 1228 (1996).  At the same time, an in-court identification
will go a long way toward rehabilitating that witness's
credibility.  People v. Lewis, 165 Ill. 2d 305, 357, 651 N.E.2d 72 (1995).  Also see People v. Slim, 127 Ill. 2d 302, 308, 537 N.E.2d 317 (1989).
     While Simpson, Lewis, and Slim are cases dealing with
identification testimony of State witnesses, there is no reason 
to believe the reasoning in them does not apply to defense 
witnesses.  The overriding principle was stated by the United
States Supreme Court:
     "Few rights are more fundamental than that of an accused to
present witnesses in his own defense."  Chambers v. Mississippi,
410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297, 312
(1973).
     Interfering with a defendant's right to present witnesses
and evidence interferes with the defendant's right to due process
and a fundamentally fair trial.  People v. Wheeler, 151 Ill. 2d 298, 305, 602 N.E.2d 826 (1992).
     We believe the trial court's failure to allow Page the
opportunity to identify McGee in open court might well have had a
destructive impact on Miller's defense.  It would have taken an
extra few minutes to find McGee and bring him into court. 
Because the case was close, and because the jury rejected
the most serious claim made by McGee, we conclude the trial
court's error requires that Miller's conviction be reversed and a
new trial ordered.
     Because the evidence, if believed by a jury, is sufficient
to support a guilty verdict, we will briefly discuss the other
issues raised by the defendant.
2. Admission of the defendant's pre-arrest statement
   The trial court allowed the State's witness, Officer Atkinson,
to testify to Miller's pre-arrest statement:  "I am a Kung Fu
master.  I will snap you in two."
     The State contends the statement was relevant to Miller's
state of mind at the time of the attack on McGee.  We note that
the statement was made only to the police officer who had stopped
Miller on the street.  McGee was sitting inside the police car.
While the statement may have had some marginal relevance, it 
posed a risk of misuse by the jury.  That is, the jury might have
taken the statement to reflect the defendant's propensity toward
violence or belligerence, an impermissible use of the evidence.
See People v. Wydra, 265 Ill. App. 3d 597, 615-16, 637 N.E.2d 74
(1994).
     We are not prepared to hold admission of the statement was
an abuse of the trial court's discretion to admit or exclude
evidence.  People v. Sims, 265 Ill. App. 3d 352, 359, 638 N.E.2d 223 (1994).  Should this case be retried, however, we suggest the
trial court carefully weigh the probative value of the statement
against any unfair prejudice it might cause.
3. Entitlement to a fitness hearing
     The defendant contends he was improperly denied a fitness
hearing.  He points to the fact that his defense lawyer moved to
withdraw one week before trial began, citing an inability to
communicate with the defendant.  Defendant's unwillingness to
cooperate with his lawyer does not, however, equate to a lack of
fitness, which is the inability to understand the nature and
purpose of the criminal proceedings or assist in his own defense.
See People v. Britz, 174 Ill. 2d 163, 673 N.E.2d 300 (1996).
     The record shows that Miller was evaluated on at least four
occasions, the last being in March 1995--only three months before
trial.  Defendant always was found fit for trial.  While his
words and conduct reflect an excessive amount of belligerence and
hostility, the defendant also demonstrated his awareness of the
nature of the case and his involvement in his defense.
     Nor was defendant entitled to a fitness hearing in accord
with section 104-21(a) of the Code of Criminal Procedure.  725
ILCS 5/104-21(a) (West 1994).  Although defendant now has
produced some evidence that indicates psychotropic drugs were
administered to him in November 1993 through January 1994, that
evidence never was presented to the trial court.  Even if it had
been, the defendant did not meet his burden of proving he was
taking psychotropic medication at or near the time of trial (June
27, 1995) or sentencing.  No fitness hearing was required.  See
People v. Burgess, 176 Ill. 2d 289, 680 N.E.2d 357 (1997).
4. Dismissal of jurors without admonishment
     Defendant claims his right to a fair trial was violated when
the trial court failed to admonish jurors about discussing the
case when they were allowed to go home after their first night of
deliberations.  We note the record is silent on what, if
anything, the trial judge told the jurors when they were allowed
to separate.  We make no further comment on this purported error
because it is unlikely to come up again in any retrial that might
take place.  Whether there will be a retrial is problematic,
since Miller was in custody from the time of his arrest in
September 1993.  He was sentenced to six years imprisonment in
August 1995.  He was given credit for time served before his
sentencing.                  
                          CONCLUSION
     Because the trial court's refusal to allow Gail Page to
identify Robert McGee in the jury's presence deprived the
defendant of a fair trial, we reverse his conviction and remand 
the case for a new trial.   
     REVERSED AND REMANDED.
     McNAMARA and CERDA, JJ., concur.