People v. Tomes

                                            THIRD DIVISION
                                            September 30, 1996    














No. 1-95-3395  
THE PEOPLE OF THE STATE OF ILLINOIS,   )  Appeal from the
                                       )  Circuit Court of
     Plaintiff-Appellee,               )  Cook County.
                                       )
          v.                           )  
                                       )
JASON TOMES,                           )  Honorable
                                       )  Daniel Kelley,
     Defendant-Appellant.              )  Judge Presiding.
                                       
     JUSTICE GREIMAN delivered the opinion of the court:
     Defendant appeals his jury convictions for attempted first
degree murder and aggravated discharge of a firearm, raising a
variety of issues. For the reasons that follow, we affirm
defendant's conviction for aggravated discharge of a firearm and
reverse the conviction for attempted murder by reason of the
response by the trial court to an inquiry from the jury.  
     The following represents the facts relevant to defendant's
appeal. In June of 1994, Tommy Selover (Selover) and Jason Tomes
(defendant) agreed to become roommates in a basement apartment
owned by Selover's father. Defendant was required to submit a
$100 security deposit and pay his share of the rent and
utilities. Approximately three weeks later, Selover "evicted"
defendant because defendant was dealing drugs out of the
apartment.
     On July 4, 1994, defendant and Jose Ortiz entered Selover's
apartment and demanded return of defendant's security deposit.
Defendant was armed with a shotgun. Selover refused and defendant
struck him in the face with the stock of the shotgun. Selover
filed a police report.
     On August 26, 1994, at approximately 1 a.m., Selover was
watching television at his girlfriend Rosalinda's second-floor
apartment. Ishmel Garcia called Rosalinda's name from the street
below. Rosalinda opened the window and Garcia asked to use her
bathroom. Rosalinda reluctantly obliged. Selover went downstairs
to open the door for Garcia. As Selover unlocked the door, Garcia
and defendant "rushed in" and confronted Selover.
     Defendant grabbed Selover by the neck, threw him against the
wall and demanded his money. He also suggested that it would be
imprudent for Selover to testify in court. Defendant lifted up
his shirt and removed a .38-caliber handgun from his waistband.
Garcia was also armed with a .38.
     Rosalinda heard the struggle below and, from the second-
floor landing, observed defendant and Garcia, both of whom were
armed with handguns, confronting Selover. Defendant held Selover
by the neck with one hand and the gun in his free hand. Rosalinda
heard defendant tell Selover that he "owed him money." Garcia
then told Rosalinda that they "wanted" Selover and that she had
"nothing to do with it." Rosalinda retreated into her apartment
and phoned the police.
     Defendant then aimed and fired the gun in the direction of
Selover's head. Selover turned his head, and the bullet entered
the wall behind him. Rosalinda heard the shot from her apartment.
Defendant and Garcia each struck Selover and fled the building.
Selover observed three additional men leave with defendant and
Garcia, one of whom Selover identified as Jose Ortiz.
     Chicago police officer Oswald responded to Rosalinda's call
and observed what he believed to be a bullet hole approximately
75 inches off the ground in the hallway wall. After photographing
the hole, Officer Oswald attempted to dig the bullet out of the
wall, but discontinued his efforts after determining that
recovery of the bullet would require extensive demolition, and,
given the lateness of the hour and the building's other
occupants, he decided such work was best done later in the
morning.
     Later that day, police evidence technician Goodson returned
to the scene and recovered a bullet from the wall. Goodson
photographed the scene and bullet, which he believed to be a .38
caliber. Defendant was arrested in connection with the alleged
assault and shooting. At the time of his arrest, defendant was
not wearing a shirt and no weapon was recovered.
     At trial, defendant called Dunia Rodriquez, who testified to
knowing both Selover and defendant and to observing Selover
display signs of anger toward defendant. Defendant also called
Detective Mannion. Mannion testified to Selover's statement that
defendant choked him, hit him on the head with a handgun, kicked
him in the side and then fired a shot at his head. Mannion did
not order a gun residue test to be done on defendant. Mannion
testified that such a test would have been rendered inconclusive
if defendant had washed his hands following the shooting. 
     Lastly, defendant called Officer Reina, who testified that
no search was made for defendant's clothing at the time of his
arrest. (The implication being that since Selover stated that
defendant lifted up his shirt to remove the gun, and was arrested
without a shirt, Selover's statement is unreliable.)
     The jury found defendant guilty of attempted first degree
murder and aggravated discharge of a firearm. The trial court
sentenced defendant to 12 years' imprisonment. Defendant now
appeals.
     Initially, we address defendant's contention that the trial
court's response to the jury's note denied him a fair trial.
During deliberations, the jurors sent a note to the trial court
stating that they had reached a decision on the aggravated
discharge of a firearm charge, but were "split" on the charge of
attempt murder. The note asked if the charge of aggravated
discharge of a firearm could "stand on itself." The trial court
responded with a note, stating "please continue to deliberate on
the charge of attempt first degree murder." Subsequently,
defendant was found guilty of both offenses. Defendant maintains
that the trial court's response was inadequate and misleading.
     Defendant suggests that the trial court's response "implied
that the jury must find the Defendant guilty of attempt first
degree murder in order for their verdict on the aggravated
discharge of a firearm charge to stand." This is a persuasive
interpretation. Generally, a trial court has a duty to instruct
the jury where clarification is requested and juror confusion is
evident, whether or not the jury was properly instructed
originally. People v. Childs, 159 Ill. 2d 217, 228 (1994).
However, a trial court may exercise its discretion and properly
decline to answer a jury's inquiries where the instructions are
readily understandable and sufficiently explain the relevant law,
where further instructions would serve no useful purpose or would
potentially mislead the jury, when the jury's inquiry involves a
question of fact, or if the giving of an answer would cause the
court to express an opinion that would likely direct a verdict
one way or another. People v. Reid, 136 Ill. 2d 27, 39 (1990).
The failure to answer or the giving of a response that provides
no answer to the particular question of law posed has been held
to be prejudicial error. E.g., People v. Shannon, 206 Ill. App.
3d 310 (1990); People v. Bryant, 176 Ill. App. 3d 809 (1988).
     In Childs, the jury wanted to know whether the defendant
could be found guilty of armed robbery and either voluntary or
involuntary manslaughter, or if a finding of guilty of armed
robbery mandated a guilty of murder verdict. Childs, 159 Ill. 2d 
at 229. The trial court replied, without consulting defense
counsel, "[y]ou have received your instructions as to the law,
read them and continue to deliberate." Childs, 159 Ill. 2d  at
225. The supreme court found the trial court's response
"necessitates reversal of defendant's conviction." Childs, 159 Ill. 2d  at 234.
     In the present case, the judge's response was far more
directive. Not only was the jury told to continue its
deliberations, it was instructed to continue to deliberate on the
charge of attempted first degree murder. While this is certainly
susceptible to an innocent construction, it is also susceptible
to a construction that directs a verdict of guilty as to
attempted murder. The implications available to the jury were (1)
that the verdict of guilty of aggravated discharge of a firearm
could not "stand on itself," and (2) the jurors should resolve
their indecision on the attempted murder charge against
defendant. Defendant was denied a fair trial, and we reverse his
conviction for attempted murder. We do not remand for a new trial
or resentencing on this charge because the sentence for
aggravated discharge of a firearm, which was 12 years, is to be
served concurrently with the 12-year sentence for attempted
murder, and we find the sentence imposed for aggravated discharge
of a firearm appropriate.     
     We now address defendant's additional arguments as they
relate to the conviction for aggravated discharge of a firearm.
Defendant argues that the trial court's ruling in limine to
exclude mention of the fact that three misdemeanor theft charges
against Selover were dismissed (SOL'd) by the State while the
charges against defendant were pending constitutes reversible
error. Defendant also argues he should have been allowed to
question Selover about a parole violation that occurred during
the pendency of defendant's trial.
     The right to cross-examine a witness concerning his biases,
prejudices or ulterior motives is protected by both the Federal
and State Constitutions. U.S. Const., amends. VI, XIV; Ill.
Const. 1970, art. I, Sec. 8; see Davis v. Alaska, 415 U.S. 308,
139 L. Ed. 2d 347, 94 S. Ct. 1105 (1974). Moreover, the exposure
of a witness' motivation in testifying is a proper and important
function of the constitutionally protected right of cross-
examination. The widest latitude should be given the defense on
cross-examination when trying to establish a witness' bias or
motive. People v. Gonzalez, 104 Ill. 2d 332, 337 (1984). A trial
court has no discretion to deny a defendant this right, but only
to preclude repetitive or unduly harassing interrogation. In this
regard, a defendant need not show interest or motive in that any
promises of leniency have, in fact, been made to the witness by
the State or that any expectations of special favor exist in the
mind of the witness, before cross-examining a witness as to
possible bias. Further, the defense is entitled to inquire into
such promises or expectations whether they are based on fact or
are simply imaginary. People v. Triplett, 108 Ill. 2d 463, 475-76
(1985).
     In the present case, the trial court, outside the presence
of the jury, allowed defense counsel to question Selover's
motives for testifying. The trial court specifically found that
Selover's motivation for testifying was not the result of any
promise of leniency by the State. While this finding is probably
accurate -- Selover had plenty of his own motivation to see
defendant incarcerated -- allowing counsel to question Selover in
the jury's absence was fairly meaningless. In People v. Baptiste,
37 Ill. App. 3d 808, 813 (1976), the court found:
          "It was for the jury to decide whether the pending
          criminal charges against James provided a further
          motive to offer false testimony beyond the self-evident
          interest of a victim of a crime. The ruling of the
          trial court restricting cross-examination prevented the
          jury from hearing evidence which could have affected
          the credibility of James and Avery. The defendants had
          the right to present this evidence to the jury under
          their theory that the State's witnesses were
          unbelievable."
     The State argues that the jury had ample evidence with which
to judge Selover's credibility, including knowledge of his
probationary status for felony forgery, two convictions for
misdemeanor theft and his "anger" toward defendant for leaving
Selover with a $1,000 phone bill. However, although this may
implicate Selover's credibility generally, it does not have the
same effect as defense counsel's attempt to establish that
Selover's three most recent theft charges were SOL'd in exchange
for testimony against defendant.
     Conversely, there is nothing in this record that suggests or
substantiates a "deal" between Selover and the State. Moreover,
although Selover was the only person to see defendant fire the
shot, apart from defendant's companion, Garcia, Rosalinda heard
the shot and witnessed the struggle leading up to it, e.g.,
defendant holding Selover in one hand and a .38 in the other. It
is well established that cross-examination to show that a witness
might be vulnerable to pressure, whether real or imagined, from
the State regarding a pending charge is a matter of right. People
v. Fonza, 217 Ill. App. 3d 883 (1991). However, where there is no
expectation of leniency from the State regarding the pending
charge, the trial court may prohibit cross-examination regarding
the charge. People v. Jackson, 198 Ill. App. 3d 831, 842 (1990).
     The trial court should have allowed counsel to question
Selover about the recently SOL'd charges, and it was error to
prohibit such examination. However, given the failure to show a
nexus between the SOL'd charges and Selover's trial testimony,
the showing of actual reasons for the witness' bias and the
rather convincing evidence of defendant's guilt, this error may
be harmless. Delaware v. Van Arsdall, 475 U.S. 673, 684, 89 L. Ed. 2d 674, 686-87, 106 S. Ct. 1431, 1438 (1986); People v.
Wilkerson, 87 Ill. 2d 151, 157 (1981) (where error encroaches on
a constitutional right, it is not reversible error where it can
be shown to be harmless beyond a reasonable doubt). As the
Supreme Court observed in Van Arsdall:
          "The correct inquiry is whether, assuming that the
          damaging potential of the cross-examination were fully
          realized, a reviewing court might nonetheless say that
          the error was harmless beyond a reasonable doubt.
          Whether such an error is harmless in a particular case
          depends upon a host of factors, all readily accessible
          to reviewing courts. These factors include the
          importance of the witness' testimony in the
          prosecution's case, whether the testimony was
          cumulative, the presence or absence of evidence
          corroborating or contradicting the testimony of the
          witness on material points, the extent of cross-
          examination otherwise permitted, and, of course, the
          overall strength of the prosecution's case." Van
          Arsdall, 475 U.S.  at 684, 89 L. Ed. 2d  at 686-87, 106 S. Ct.  at 1438.
     Our review of these factors, particularly the extensive
cross-examination that was allowed and the damaging testimony of
Rosalinda, indicates that the trial court's error was harmless.
See People v. Bland, 228 Ill. App. 3d 1080, 1088-89 (1992) (error
was harmless because there was overwhelming evidence of
defendant's beating the victim and testimony from an eyewitness
as well as the victim).
     Defendant next argues that he was prejudiced by the
erroneous admission of hearsay evidence. Officer Goodson
recovered a bullet from the crime scene that he "believed based
on his experience" to be .38 caliber. Selover testified that
defendant's gun was a .38. Goodson's report indicated that the
bullet was a "possible .38." On redirect examination, and over
defense objection, the following exchange took place:
               "Q. You indicated that this item was received at
          the Chicago Crime Lab, is that correct?
               A. That's correct.
               Q. Are you aware that the Chicago crime lab
          determined this to be a .38 caliber bullet?
               A. Yes, I have a -- I am aware that they told me
          it was a .38 bullet."    
     This is undeniably hearsay, and the State concedes "the
better course of action would have been for the State to call a
witness from the Chicago crime lab." Selover testified that
defendant fired a .38-caliber handgun at his head. The fact that
the bullet recovered was a .38 corroborates Selover's testimony,
particularly since the gun itself was not found. Given the
importance of this evidence, the State's failure to properly
admit the caliber of the bullet into evidence is mystifying.
However, error is harmless when this court can conclude, after
consideration of the totality of the evidence, that a trial
without error would not end in a different result. People v.
Cisewski, 118 Ill. 2d 163 (1987). We conclude that the error was
harmless.
     Defendant argues next that the trial court's refusal to
admit the testimony of Dunia Rodriquez constitutes reversible
error. Rodriquez would have testified that on four or five
occasions she observed Selover demand money from defendant while
the two were sharing expenses. This too is hearsay, but defendant
contends it was not being offered for the truth of the statement,
that defendant owed Selover money, but only to establish that
Selover had a motive to falsely testify -- because of residual
anger over the owed money.
     Defendant's contention that the statement was not being
offered for its truth is unconvincing. Selover's motive to lie
depends on the truth of Dunia's statement, that Selover demanded
money from defendant and received nothing. Moreover, the jury was
well aware that defendant owed Selover money, including a $1,000
phone bill. Dunia's testimony is hearsay and of little use to
defendant. We find no abuse of discretion.
     Defendant argues next that the trial court erred in limiting
cross-examination of Selover to exclude questions about his
alleged drug use. During cross-examination of Selover, the
following colloquy occurred:
               "Q. Tommy, do you use drugs?
               A. No, I don't.
               Q. Tommy, you don't smoke marijuana on almost a
          daily basis?
               A. No."
     The State's objection on relevance grounds was sustained.
Dunia Rodriquez would have testified to witnessing Selover smoke
marijuana in her presence at least twice weekly.
     It is well settled that evidence of drug addiction is
admissible not only to impeach a witness' ability to recall or
testify, but to impeach such witness' honesty and integrity in
general. People v. Galloway, 59 Ill. 2d 158, 163 (1974).
Defendant cites cases where evidence of drug addiction, not use,
was improperly excluded. There is insufficient evidence of
Selover's addiction to marijuana to warrant application of those
cases. Accordingly, the trial court was within its discretion to
find such questions "completely irrelevant."
     Defendant further argues that he was denied a fair trial
based on the prosecutor's comments during rebuttal closing
argument. To constitute reversible error, the complained-of
comments must have resulted in substantial prejudice to the
accused, such that absent those comments the result would have
been different. People v. Morgan, 112 Ill. 2d 111, 132 (1986).
     Defendant takes issue with the following "improper" comment:
          "It's correct that he (defendant) was presumed
          innocent before the trial began, he was cloaked in
          innocence as he sat over there. That was before you
          heard the evidence. The evidence is in ladies and
          gentleman."    
Essentially, the prosecutor is saying that defendant is guilty.
This is not, as defendant contends, "a clear misstatement
regarding presumption of innocence." Additionally, the
prosecutor's comment was invited by defense counsel's earlier
statement:
           "[w]hen Jason comes in here, he's wearing a blue
          shirt now, he's wearing the presumption of innocence,
          not only the shirt *** that presumption of innocence
          never left you, never. You take that presumption back
          with you."
     Defendant also takes issue with the following comment:
          "Let me say one more thing ladies and gentlemen, at
          least Tommy Selover was honest and forthright enough
          with you to take that stand and to tell you about the
          trouble he has been in. He has nothing to hide." 
We believe this comment refers exclusively to Selover, and does
not reference defendant's choice not to testify. Accordingly, we
decline to find error. The remainder of the complained-of
comments are not worth addressing.
     Defendant alleges further that the trial court erred in
allowing evidence of an earlier assault committed by defendant on
Selover. On July 4, 1994, defendant went to Selover's apartment
and, after Selover refused to return his security deposit, struck
him in the head with the stock of a shotgun. 
     Evidence of other crimes is admissible where relevant for
any purpose other than to show the propensity to commit crime.
People v. Robinson, 167 Ill. 2d 53 (1995). Other crimes evidence
may be relevant to prove modus operandi, intent, identity, motive
or absence of mistake. Robinson, 167 Ill. 2d  at 62-63. However,
even such generally admissible evidence may be excluded if its
probative value is outweighed by its prejudicial effect. People
v. Triplett, 99 Ill. App. 3d 1077 (1981). The trial court's
decision to allow such evidence will not be reversed absent a
clear abuse of discretion. Robinson, 167 Ill. 2d  at 63.
     Defendant argues that the two crimes are dissimilar and,
thus, the prior crime is not relevant. However, an analysis of
the similarity between the prior and present crimes is applied
only where the prior crime is being admitted under a theory of
common design or modus operandi. See People v. Illgen, 145 Ill. 2d 353 (1991). This is not the present case.
     The trial court allowed evidence of the prior battery under
theories of motive -- hostility showing defendant likely to do
further violence -- and criminal intent. These are acceptable
grounds upon which to admit evidence of defendant's prior
battery, and the trial court specifically found that the
probative value of such evidence outweighed any prejudicial
effect.
     Defendant next contends that the trial court improperly
restricted his cross-examination of Officer Goodson. Defendant
failed to raise this issue in his motion for new trial and, thus,
has waived this issue for purposes of review. See People v.
Enoch, 122 Ill. 2d 176 (1988). 
     Defendant raises additional arguments that we find
unpersuasive or that relate to the vacated conviction for
attempted murder. Accordingly, for the reasons set forth above,
we affirm defendant's conviction for the aggravated discharge of
a firearm, and its accompanying sentence, and reverse defendant's
conviction for attempted murder.
     Affirmed in part and reversed in part.
     CERDA, J., and GALLAGHER, J., concur.