In re T.S.

                                          FOURTH DIVISION
                                          APRIL 24, 1997         
                              












No. 1--96--2205

In the Interest of T.S., a minor, 
THE PEOPLE OF THE STATE OF ILLINOIS,

          Petitioner-Appellee,

               v.

T.S.,

          Respondent-Appellant.)
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)
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)
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)Appeal from the
Circuit Court of
Cook County

No. 96--JD--2022

Honorable
Richard Walsh,
Judge Presiding.


     JUSTICE CERDA delivered the opinion of the court:
     After a bench trial, respondent, T.S., was found guilty of 
robbery (720 ILCS 5/18-1 (West 1994)), adjudicated a delinquent,
and committed to the Juvenile Department of Corrections.  On
appeal, respondent asserts that (1) he was denied a fair trial
because the trial court explicitly based its guilty finding on
non-existent evidence; (2) he was denied a fair trial because the
trial court improperly used impeachment testimony as substantive
evidence in its finding; and (3) his right to confrontation was
violated because he was not allowed to cross-examine the victim
for possible bias.  For the following reasons, we affirm.
     Prior to trial, the trial court denied respondent's motion
in limine to cross-examine the victim, Willie Newsom, about three
felony charges that had been stricken with leave to reinstate,
which were still within the statute of limitations. 
     At trial, Newsom testified that he and Will Clarke were
walking on Rockwell Street near 71st Street in Chicago on January
20, 1996, around 8:30 p.m.  The area was well-lit with
streetlights.  They encountered T.S. and another teenager, who
asked them several questions.  Newsom recognized T.S. from
playing basketball at Marquette Park and identified him in court. 
     Newsom and Clarke continued to walk south on Rockwell as
T.S. and the other teenager shouted at them.  When Newsom and
Clarke turned west on 72nd Street, T.S. and the other teenager
started to run toward them.  According to Newsom, T.S. was
wearing a green and black flannel shirt and dark-colored pants,
and the other teenager was wearing a black and blue coat.  
     With the two offenders chasing them, Newsom ran down one
alley as Clarke ran toward a different alley.  Newsom hid in
someone's back yard, but could hear voices threatening him from
the alley.  He ran from yard to yard until he ran westbound
through an alley near California Street.  There, he saw the
second teenager, who was carrying a brick, coming from the side
of a Clark service station.  When Newsom started to run away, the
offender threw the brick, hitting Newsom in the back of his head. 
After Newsom stumbled and fell, the second offender jumped on him
and started to beat him.
     At that point, Newsom saw T.S. run into the alley.  As the
second offender continued hitting Newsom in the head, T.S. went
through Newsom's pockets and took his wallet, social security
card, check stubs, and $30 in cash.  He also took Newsom's suede
coat and a pager.  
     When a car drove up, the two offenders ran.  The woman in
the car drove Newsom to a gas station where she called an
ambulance and the police.  An ambulance arrived and took him to
the hospital where he told the police that he had been robbed and
that the name of one of the offenders was Tywon, which is T.S.'s
first name.
     On February 2, 1996, at the police station, Newsom looked
into a room where T.S. was sitting by himself and nodded to the
police, "He's the one."  Newsom denied that he also positively
identified Derrick Thornton as the second offender.
     Willie Clarke testified that he and Newsom were walking on
72nd Street near Talman Avenue on the night of January 22, 1996,
when Newsom stopped to talk with a group of people.  Clarke
continued to walk and Newsom caught up to him.  When the group of
people looked as if they were running toward them, Newsom told
Clarke to run.  Clarke and Newsom began to run, splitting up
along the way.  Clarke did not see Newsom again that evening.  
     Judith Leavell testified that she was at the Clark gasoline
station at the corner of 71st Street and California Avenue about
8 p.m. on January 22, 1996, getting gas for her car.  She noticed
a young man, whom she identified as Newsom, walking southbound on
California Avenue and another young man, whom she identified as
T.S., "skulking" around the corner of the gas station.  She
stared at T.S. because he appeared to have something in his right
hand behind his back and she was afraid it might be a gun.  
     Leavell followed T.S.'s gaze towards Newsom, who walked into
an east-west alley.  After she heard a yell, she saw Newsom run
down the alley with T.S. chasing him.  She paid for her gas and
drove around the area until she saw movement at the end of an
alley between Mozart Street and California Avenue.  She turned on
her car's bright lights and drove northbound in the alley until
she saw two young men beating Newsom in the head.  
     Newsom, who was wearing a T-shirt and jeans, but no shoes or
coat, was lying on the ground while T.S. hit him in the head with
a brick.  T.S. was wearing dark pants and a shirt with red in it,
and the other offender was wearing dark clothing.  When Leavell
drove up, T.S. looked directly into her car's headlights, then
ran away with the second offender.  
     After Newsom got into Leavell's car, Leavell drove to the
Clark station and called 911.  She never told the police what she
saw that night, but she spoke with an investigator from the
State's Attorney's Office after receiving a summons to appear in
court.
     Chicago police officer Robert Graeber testified that on
February 2, 1996, he spoke with Newsom.  Defendant's attorney
objected, arguing that this was inadmissible hearsay and a prior
consistent statement being used to bolster Newsom's testimony. 
The trial court stated that the testimony was not hearsay because
it was not being offered for the truth of the matter asserted,
but was offered to show why the officers acted as they did.  
     Graeber testified that he asked Newsom if he had any
additional information on T.S., whom he had named in the original
case report as one of the offenders.  After Newsom told him that
one of his friends, Poochie, knew where T.S. lived, Poochie took
the officers to T.S.'s house at 7129 South Rockwell.  The police
went to the house and arrested T.S., read him his Miranda rights,
and drove him to the police station.  While T.S. was sitting in
the processing room with several police officers, Newsom looked
into the room and identified T.S. as the person who had robbed
him. 
     On cross-examination, Graeber testified that the police
report of another officer stated that one of the offenders was
T.S., who was wearing a green and black flannel shirt, and the
second offender was wearing a green-gray skull cap, dark coat,
and black pants.  Graeber admitted that Derrick Thornton had been
a suspect in the case, but was released when it was learned that
he had been in the Audy Home on the night of the incident.  
     Steve Sapienza, an investigator for the Public Defender's
Office, testified that he spoke with Newsom by telephone on March
8, 1996.  Newsom told him that he knew T.S. because they went to
elementary school together in 1993.  Newsom did not mention that
he knew T.S. from playing basketball at Marquette Park.  
     Sapienza also spoke with Leavell by telephone on March 15,
1996.  She stated that she saw the offenders only briefly and was
never interviewed by the police.  When she spoke with an
investigator from the State's Attorney's Office, she identified
the offenders by their clothing.  The only thing she remembered
telling the investigator was that one of the offenders was
wearing something with red in it.
     Derrick Thornton testified that he had known T.S. for two
years.  On February 2, 1996, the police came to his house and
drove him to the police station where they placed him in a room
alone.  The police read him his Miranda rights and asked him
where the beeper and coat were, then brought Newsom into the
room.  They asked Newsom whether Thornton was one of the
offenders.  After Newsom indicated "yes" with his head, the
police told Thornton that Newsom had identified him as the
offender.  At that point, Thornton told the police that he had
been in the Audy Home on the night of the incident.  While the 
police checked his story, they put Thornton in the same room with
T.S., then released him.
     After the close of evidence and closing arguments, the trial
court made a finding of delinquency.  At sentencing, the trial
court adjudicated T.S. to be a violent juvenile offender based on
a previous adjudication of delinquency and committed him to the
Juvenile Department of Corrections.
     T.S. asserts on appeal that he was denied a fair trial
because the trial court explicitly based its guilty finding on
the following non-existent evidence: (1) Newsom testified that he
told the police while he was in the hospital that someone named
Tywon robbed him; and (2) Poochie identified T.S. as the robber.
     We disagree.  First, Newsom did testify on redirect
examination that he told the police in the hospital that the name
of one of the offenders was Tywon.  Second, the trial court never
stated that Poochie identified T.S. as the offender.  Instead,
the trial court stated:
          "Poochie was the one who basically knew where Tywon
          lived and took them to the house and showed them the
          house.  So this wasn't a matter of the police going out
          and bringing in an individual and then asking for a
          suggestive show up.  This is kind of the opposite." 
     While we recognize that the trial court's comments could
have been clearer, we find that they related to defendant's
closing argument remarks that the out-of-court identification of
T.S. was a suggestive show-up.  It merely shows that the police
arrested the person named in the police report.  It never stated
that Poochie identified T.S. as one of the offenders.  Moreover,
a reviewing court must presume that the trial court considered
only competent evidence unless the contrary affirmatively appears
of record.  People v. Schmitt, 131 Ill. 2d 128, 137-38, 545 N.E.2d 665 (1989); People v. Crossley, 236 Ill. App. 3d 207, 218,
603 N.E.2d 575 (1992).  For those reasons, we find that the trial
court did not base its finding on non-existent evidence.
     Next, T.S. asserts that the trial court improperly used
Graeber's testimony about his investigation as substantive
evidence even though it was admitted only for the limited purpose
of showing the course of the police investigation.  
     Graeber testified that he spoke to Newsom at his home on
February 2, 1996.  He stated:
          "We asked [Newsom] about the circumstances of the
          robbery that he had reported.  And we asked him if he
          had any further information on the offender who he had
          named in the original case report as Tywon, and he
          stated that one of his friends knew where Tywon lived."
     Although the trial court properly overruled the defense
counsel's objection because the testimony was being admitted
solely to show why Graeber acted as he did, defendant argues it
relied on Graeber's testimony as substantive evidence when it
stated in its finding: 
          "Officer Graeber testified, contrary to the arguments
          made here, that they went to his home and that a friend
          of Poochie was the one who basically knew where Tywon
          lived and took them to the house and showed them the
          house.  So this wasn't a matter of the police going out
          and bringing in an individual and then asking for a
          suggestive show up.  This is kind of the opposite." 
     As we stated earlier, these comments related to defendant's
argument that Newsom's identification of T.S. in the police
station was a suggestive show-up.  Therefore, we conclude that
the trial court did not improperly use Graeber's testimony about
his investigation as substantive evidence. 
     Next, T.S. asserts that his cross-examination of Newsom was
improperly restricted by the trial court because he was not
allowed to question Newsom about his bias and motive to give
false testimony.  Specifically, T.S. argues that he should have
been allowed to question Newsom about three felony charges
against him that had been stricken with leave to reinstate.  One
of the charges was for burglary, which was SOL'ed on May 2, 1994. 
In addition, charges for burglary and possession of a stolen
motor vehicle were SOL'ed on September 27, 1995, and November 8,
1995.
     In response, the State argues that the trial court did not
abuse its discretion in limiting T.S.'s cross-examination of
Newsom because the SOL'ed charges were too remote.  
     While the scope of the cross-examination rests largely in
the discretion of the trial court (People v. Hudson, 157 Ill. 2d 401, 435, 626 N.E.2d 161 (1993)), that discretion must be
exercised in such a way as to allow the defendant wide latitude
in establishing bias, motive, or interest by the witness (People
v. Wilkerson, 87 Ill. 2d 151, 156, 429 N.E.2d 526 (1981); People
v. Perez, 209 Ill. App. 3d 457, 470, 568 N.E.2d 250 (1991)).  A
defendant may question a witness on any matter where it would
reasonably tend to indicate that his testimony might be
influenced by an interest, bias, or motive to testify falsely. 
People v. Triplett, 108 Ill. 2d 463, 475, 485 N.E.2d 9 (1985);
People v. Kaczmarek, 243 Ill. App. 3d 1067, 1081, 613 N.E.2d 1253
(1993).  Cross-examination to show bias, interest, or motive to
testify falsely is a matter of right, which can be precluded only
if it is repetitive or harassment of the witness.  Triplett, 108 Ill. 2d  at 475.  
     Even though the evidence must not be remote or uncertain,
the defendant is entitled to inquire into any promises or
expectations whether based on fact or imaginary.  Triplett, 108
Ill. 2d at 475-76; Perez, 209 Ill. App. 3d at 470-71.  He is not
required to show beforehand that any promises of leniency had
actually been made or that any expectations of special favor
existed in the mind of the witness.  People v. Harris, 123 Ill. 2d 113, 147, 526 N.E.2d 335 (1988); Triplett, 108 Ill. 2d  at 476;
Perez, 209 Ill. App. 3d at 470.
     Evidence of an arrest is admissible to show that the
witness's testimony may be influenced by bias, interest, or
motive to testify falsely.  Triplett, 108 Ill. 2d  at 475.  A
defendant is denied his constitutional right to confront the
witnesses against him when the trial court precludes him from
questioning a witness about those arrests that have been stricken
with leave to reinstate if they could have been reinstated
against the witness at the time of the trial.  Triplett, 108 Ill. 2d  at 482-83.  The State may reinstate a cause that has been
stricken with leave to reinstate if done within the limitation
period, which is three years for a felony prosecution.  Triplett,
108 Ill. 2d  at 482. 
     Accordingly, T.S. should have been allowed to fully cross-
examine Newsom about any motivation he may have had to lie and
whether he contemplated any leniency because of his testimony. 
The exposure of a witness's motivation in testifying is a proper
and important function of the constitutionally protected right of
cross-examination.  Davis v. Alaska, 415 U.S. 308, 315-16, 39 L. Ed. 2d 347, 353, 94 S. Ct 1105, 1110 (1974).  All of the SOL'ed
charges could have been reinstated at the time of the trial. 
Therefore, T.S. was entitled to try to establish that Newsom
might be biased because he hoped that testifying against
defendant would ensure that the felony charges against him would
not be reinstated.
     Nevertheless, we find this error to be harmless beyond a
reasonable doubt since there was no reasonable possibility that
the outcome would have been different if T.S. had been allowed to
cross-examine Newsom on his SOL'ed charges.  Chapman v. Cali-
fornia, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824,
827 (1967); Fahy v. Connecticut, 375 U.S. 85, 86-87, 11 L. Ed. 2d 171, 173, 84 S. Ct. 229, 230 (1963).  The evidence of T.S.'s
guilt was overwhelming.  There were three eyewitnesses, Newsom,
Clarke, and Leavell, who placed T.S. at the scene prior to and
during the offense.  Leavell, an unbiased witness, and Newsom,
the victim, positively identified T.S. as one of the offenders.
Furthermore, Newsom knew T.S. prior to this incident because they
went to school and played basketball together.  
     In addition, Newsom, the victim in this case did not need a
promise of leniency by the State's Attorney to testify against
T.S.  Newsom required medical attention at the hospital as a
result of being struck by a brick and a beating he received.  His
property was stolen from him.  Clearly those were the reasons why
he testified against T.S.  Therefore, we find it was harmless
error to not allow T.S. to fully cross-examine Newsom about any
promise of leniency given in exchange for testifying against T.S.
     For the foregoing reasons, we affirm.
     Affirmed.
     McNamara, J., and Burke, J., concur.