{ "id": 2998557, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT STOUT, Defendant-Appellant", "name_abbreviation": "People v. Stout", "decision_date": "1982-12-07", "docket_number": "No. 81\u2014200", "first_page": "830", "last_page": "838", "citations": [ { "type": "official", "cite": "110 Ill. App. 3d 830" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "86 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3188427 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0335-01" ] }, { "cite": "96 Ill. App. 3d 540", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12136586 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0540-01" ] }, { "cite": "105 Ill. App. 3d 1059", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5473161 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/1059-01" ] }, { "cite": "84 Ill. 2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3046232 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0350-01" ] }, { "cite": "93 Ill. App. 3d 725", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3134578 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0725-01" ] }, { "cite": "35 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5306744 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0061-01" ] }, { "cite": "50 Ill. App. 3d 184", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5640832 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0184-01" ] }, { "cite": "88 Ill. App. 3d 808", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3171370 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0808-01" ] }, { "cite": "53 Ill. App. 3d 492", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3395777 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0492-01" ] }, { "cite": "100 Ill. App. 3d 478", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5502192 ], "pin_cites": [ { "page": "481-83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0478-01" ] }, { "cite": "109 Ill. App. 3d 1010", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5449458 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/1010-01" ] }, { "cite": "59 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3356366 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0785-01" ] }, { "cite": "100 S. Ct. 1340", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "63 L. Ed. 2d 777", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "445 U.S. 944", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777441, 1777828, 1777892, 1777733, 1777479, 1777577, 1777483, 1777839, 1777588, 1777525, 1777366, 1777527, 1777437 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/us/445/0944-09", "/us/445/0944-08", "/us/445/0944-05", "/us/445/0944-03", "/us/445/0944-04", "/us/445/0944-02", "/us/445/0944-11", "/us/445/0944-12", "/us/445/0944-13", "/us/445/0944-07", "/us/445/0944-01", "/us/445/0944-06", "/us/445/0944-10" ] }, { "cite": "77 Ill. 2d 41", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490485 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "44-45" }, { "page": "44-45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0041-01" ] }, { "cite": "87 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3030946 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "157" }, { "page": "157" }, { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0151-01" ] } ], "analysis": { "cardinality": 857, "char_count": 20335, "ocr_confidence": 0.763, "pagerank": { "raw": 1.1158100702464244e-07, "percentile": 0.5721864479357677 }, "sha256": "0ec39c0b0c6bb05e3e90c5fa2a4ae822c7daddb254c6921358521ed32081ec12", "simhash": "1:999976c25be091f0", "word_count": 3300 }, "last_updated": "2023-07-14T17:28:01.901115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT STOUT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nHerbert Stout was charged on a 13-count information in McHenry County with the offenses of burglary, theft, attempt and forgery. This appeal arises from his jury trial on one count each of burglary and theft (Ill. Rev. Stat. 1979, ch. 38, par. 19 \u2014 1(a) and par. 16 \u2014 1(a)(1)), and four counts of forgery (Ill. Rev. Stat. 1981, ch. 38, par. 17\u2014 3(a)(1)).\nHe was acquitted of the forgery counts and the burglary charge. He was convicted and sentenced to two years in the Department of Corrections for theft over $150, the sentence to be served consecutively to a three-year term imposed three months earlier for his conviction of two other counts of forgery which were contained in the information.\nThe defendant raises four issues here: (1) whether the trial court erred by limiting his cross-examination of a State witness in order to reveal the witness\u2019 bias, interest or motive for testifying; (2) whether the trial court erred in denying his tendered accomplice instruction; (3) whether the trial court erred in admitting into evidence two search warrants with supporting affidavits; and (4) whether the imposition of a consecutive sentence was improper.\nStout and the State\u2019s key witness at trial, Ronnie Starks, were taken into custody after the police apprehended DeWayne Nicholas, who had attempted to cash a check drawn on the account of the Century Wheels Research Corporation, at the Fox Lake Currency Exchange. The office manager there had previously been alerted that checks drawn on the Century Wheels account were stolen from its parent company, the Precision Switching Company in Spring Grove, Illinois.\nStout was implicated in the offenses charged on the basis of information provided to the police by Ronnie Starks. In two affidavits given to support the issuance of search warrants for a house and automobile belonging to Raymond Shaughnessy, Starks admitted his participation in cashing certain checks he alleged were forged by Stout, checks Stout and Shaughnessy allegedly had told Starks were stolen.\nAt trial, Starks testified that on May 28, 1980, Stout told him that he, DeWayne Nicholas, Dick Polinski, and Raymond Shaughnessy had burglarized the Precision Switching Company at about 7 or 7:30 p.m. the night before (May 27). Starks testified that on May 28, Stout drew two Century Wheels Research Corporation checks payable to the order of Nicholas and Starks using the checkwriter stolen from Precision Switching. Starks testified that because he cannot read or write, Stout endorsed the check made out to Starks\u2019 name; the checks were later cashed at the Fox Lake Currency Exchange, and Starks, Nicholas and Stout split the proceeds.\nThe same procedure was repeated the next day, the 29th, except that the first attempt of the men to cash the checks at a currency exchange in Schaumburg was unsuccessful, so they returned to the Fox Lake Currency Exchange where the checks were successfully cashed. Also on the 29th, after the checks were drawn up by Stout, some of the stolen office equipment was removed from Shaughnessy\u2019s house and placed in a red Vega which was parked in Shaughnessy\u2019s front yard.\nStout presented an alibi defense, testifying that on the night of the burglary, he was at the Cozy Cottage, a tavern in Volo, Illinois, from approximately 6 p.m. until 1:30 a.m., with Ray Shaughnessy and Dick Polinski. The testimony of Shaughnessy, Polinski, and the bartender at the Cozy Cottage, Joe Verga, substantially corroborated that of Stout. Stout related that he and his girl friend lived next door to Starks and Starks\u2019 girl friend. At trial, it was revealed that Starks\u2019 girl friend was DeWayne Nickolas\u2019 sister, and a former employee of Precision Switching. Stout testified he was approached by Starks in the early morning of May 28, with the request that Starks be allowed to \u201cleave some stuff\u201d in Stout\u2019s girl friend\u2019s garage. She refused to allow this, and Stout suggested that Starks put the \u201cstuff\u201d in Shaughnessy\u2019s attic storage area, which they did together. Shaughnessy, although at home asleep during the time Starks and Stout moved the \u201cstuff\u201d in, was unaware that this had transpired until Stout mentioned it to him later that morning. Shaughnessy then demanded the items be removed from his house, because he believed the items were stolen. The items were later placed in the red Vega. Stout denied burglarizing Precision Switching, denied any knowledge of, or forging of, any of the checks admitted at the trial, and denied any involvement in the theft of the property identified at trial.\nPrior to trial, the State moved in limine that the defendant be prohibited from cross-examining witness Ronnie Starks regarding charges that were pending against him in Lake County (i.e., burglary and theft from a coin-operated machine). The defendant argued he should be permitted to cross-examine Starks as to the charges pending in Lake County for the purpose of exposing any bias, interest, or motive Starks might have to testify falsely against Stout. Defense counsel noted that the pending charges in Lake County occurred after Starks had been placed on two-year probation for burglary in McHenry County (where the defendant\u2019s trial was taking place) on July 31, 1980. Starks was also on probation in Lake County for a misdemeanor charge of exerting unauthorized control over property. Consequently, counsel argued, Starks could be testifying under the belief, reasonable or otherwise, that if' he cooperated with the State against Stout, his probation in McHenry County would not be revoked in view of the pending Lake County charges.\nThe trial court granted the State\u2019s motion in limine as to the charge pending against Starks in Lake County, but reserved for an offer of proof during the trial whether the McHenry County State\u2019s Attorney had made any promises to him. Following such an offer made in chambers, at which Starks was questioned by defense counsel, the trial court denied defense counsel\u2019s motion to allow him to question Starks in front of the jury. It was the trial court\u2019s finding that there was nothing in the offer of proof that indicated any promise of reward was made to Starks in return for his testimony.\nWe note that the record shows that Starks was questioned before the jury concerning his conviction in 1975 of a burglary/grand larceny charge in Florida, and his 1980 conviction for burglary in McHenry County following a negotiated guilty plea for which conviction he received a two-year sentence of probation. Part of that plea agreement was that Starks agreed to cooperate with the State\u2019s Attorney\u2019s office and the sheriff\u2019s department in the prosecution of Herbert Stout one time, at one trial. Before his trial in the instant cause, Stout had been convicted of two of the other forgery counts contained in the information, at which trial Starks testified in accordance with his plea agreement. The trial court, however, struck and directed the jury to disregard, a question posed to Starks by the assistant State\u2019s Attorney concerning \u201cother matters\u201d pending against Stout in which Starks was also involved. The jury heard Starks testify that prior to the negotiated plea, he had assisted the State and the sheriff\u2019s office in getting the search warrants for Shaughnessy\u2019s house and car, and that he had provided those authorities with the information necessary to secure those warrants. In later questioning by defense counsel, Starks stated that pursuant to his part of the plea agreement he had testified against the defendant at the \u201cfirst trial.\u201d\nThe State urges this court to reject Stout\u2019s assertion of error first, because the jury apparently rejected Starks\u2019 testimony since it found Stout guilty only of theft over $150 which conviction was otherwise supported by the testimony of a defense witness, Raymond Shaughnessy; and second, the error was harmless because the offer of proof revealed Starks had no expectations of leniency.\nIn support of its arguments, the State cites People v. Wilkerson (1981), 87 Ill. 2d 151, 157, People v. Eddington (1979), 77 Ill. 2d 41, 44-45, cert. denied (1980), 445 U.S. 944, 63 L. Ed. 2d 777, 100 S. Ct. 1340, and People v. Martin (1978), 59 Ill. App. 3d 785.\nIn our opinion, the State\u2019s reliance on these cases is misplaced. This court has recently considered this same issue in two cases and has found the error was not harmless beyond a reasonable doubt and reversed and remanded each for a new trial. People v. Foley (1982), 109 Ill. App. 3d 1010; People v. Freeman (1981), 100 Ill. App. 3d 478, 481-83.\nIn Eddington, the court in chambers questioned both the witness and the prosecutor, and concluded no leniency was offered or expected. Here, only the witness was questioned, and his testimony did not clearly negate the possibility that he expected that his cooperation in testifying against Stout would, at the least, militate against the institution of probation revocation proceedings in McHenry County. Additionally, in Eddington, the prosecutor had very little influence over the disposition of the unrelated drug charges which were pending against the witness because they were in another county. Here, although the pending charge was in another county, Lake County, the offense occurred after the witness was placed on probation in McHenry County and, therefore, was a violation of one of the conditions of the witness\u2019 probation; i.e., that he not violate any laws. Thus, the McHenry County State\u2019s Attorney had sole prosecutorial discretion to either maintain the witness\u2019 probationary status or file a petition to revoke the witness\u2019 probation. Finally, the court in Eddington also considered the fact that the witness would be testifying to, and had, in fact, given a statement and previously testified to, the facts surrounding the incident which had occurred two years earlier. It therefore concluded that it was not reasonable to believe that the testimony of the witness would be influenced by any interest or bias in connection with the cannabis charge. People v. Eddington (1979), 77 Ill. 2d 41, 44-45, cert. denied (1980), 445 U.S. 944, 63 L. Ed. 2d 777, 100 S. Ct. 1340.\nIn Martin, the court found no error occurred when the court, after an in-chambers examination of the witness, refused to permit cross-examination to discover potential bias due to pending battery charges unrelated to the trial of the defendant for arson. However, counsel\u2019s attempt to show bias in that case would have been merely cumulative and, thus, harmless error (People v. Wilkerson (1981), 87 Ill. 2d 151, 157), because the witness had already testified before the jury that he had also been charged with arson, and that his plea agreement with the State in return for his testimony was for a reduction of the charge to criminal damage to property over $150, and a two-year probation sentence. Consequently, the jury was apprised of the witness\u2019 potential bias, interest, and/or motive for testifying. People v. Martin (1978), 59 Ill. App. 3d 785.\nIn the case at bar, the jury knew the witness had struck a deal with the State to testify onee against the defendant, and that he had done so at the defendant\u2019s first trial. The trial court\u2019s disallowance of any cross-examination regarding the charges pending against the witness in Lake County thus left the jury with the impression that he had nothing to gain by his testimony against Stout and, as pointed out by the defendant, the court\u2019s error was compounded by the jury\u2019s erroneous impression and reinforced by the prosecutor\u2019s comments during closing argument.\nIn sum, the error may not be dismissed as harmless. Starks was the State\u2019s key witness and his credibility, or lack of it, was crucial to the case. Stout was improperly denied the right to fully confront this key witness before the jury, the ultimate trier of fact and assessor of credibility. As noted above, the evidence of the pending charges would not have been merely cumulative. Further, contrary to the State\u2019s assertion, Shaughnessy\u2019s testimony does not support the defendant\u2019s conviction for theft. Shaughnessy testified that he, meaning himself, thought the \u201cstuff\u201d was stolen. Absent Starks\u2019 specific testimony and the exhibits flowing from Starks (the warrants and supporting, affidavits), there is no evidence in the record which even approaches the quantum which might be termed \u201coverwhelming\u201d evidence, as a result of which the error might be determined to be harmless. (People v. Wilkerson (1981), 87 Ill. 2d 151, 157.) The defendant\u2019s alibi defense at trial was substantially corroborated by three other witnesses, one of whom was not implicated in any way in the offenses charged: the Cozy Cottage bartender, Joe Verga.\nWe believe the cases cited require the cause be reversed and remanded for a new trial. In view of the disposition of this issue, it is not necessary to address the issue of whether the trial court erred in refusing Stout\u2019s tendered \u201caccomplice\u201d instruction.\nBecause this cause will be retried, we will address the third issue raised by Stout, that is, whether the trial court erred in admitting the search warrants and supporting affidavits.\nStout argues that the trial court erred in admitting into evidence, over objection, the search warrants and supporting affidavits which were issued for Raymond Shaughnessy\u2019s house and car. Stout contends the warrants and affidavits were improperly admitted because they constituted hearsay and served to improperly bolster the testimony of two crucial State witnesses as evidence of prior consistent statements. He cites primarily People v. Carr (1977), 53 Ill. App. 3d 492, and People v. Tidwell (1980), 88 Ill. App. 3d 808, in support. The State counters that Stout invited and/or waived the error, citing in support People v. Denwiddie (1977), 50 Ill. App. 3d 184, People v. Hayes (1975), 35 Ill. App. 3d 61, and People v. Pallardy (1981), 93 Ill. App. 3d 725.\nWe note Stout did not raise this issue in his post-trial motion. Ordinarily, under these circumstances, Stout is deemed to have waived review of this issue. People v. Jackson (1981), 84 Ill. 2d 350; People v. Gutierrez (1982), 105 Ill. App. 3d 1059; People v. Christiansen (1981), 96 Ill. App. 3d 540.\nHowever, the waiver rule is not absolute. The supreme court has held that substantial error may be considered if the error was so seriously prejudicial as to prevent the defendant from receiving a fair trial. (People v. Jackson (1981), 84 Ill. 2d 350, 359.) Supreme Court Rule 615(a) provides for this exception: \u201cPlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d (87 Ill. 2d R. 615(a).) We believe the error claimed was substantial and will review it.\nHere, when the State posed a question to its police officer witness on direct examination concerning what information he received from an informant which caused him to pursue the issuance of the search warrant, the defense counsel interposed an immediate objection to the question, stating that the search warrant would contain that information. The assistant State\u2019s Attorney indicated the question was meant to show what the officer\u2019s frame of mind was \u201cin order to pursue the preparation of the search warrant.\u201d Stout argued, in essence, that because the officer\u2019s state of mind was not based on his own first-hand knowledge but, rather, that of the informant (Starks), any testimony on that point would be hearsay. The trial court, apparently misunderstanding the basis for defense counsel\u2019s objection, ordered the assistant State\u2019s Attorney to produce the warrants and affidavits as the \u201cbest evidence.\u201d Defense counsel said, \u201cThank you,\u201d seemingly agreeing with the court\u2019s order. However, after a brief recess during which time the assistant State\u2019s Attorney secured the documents, defense counsel immediately explained his objection was not that the warrant rather than the witness\u2019 testimony constituted the \u201cbest evidence\u201d but, rather, that any testimony as to the officer\u2019s motivation for his subsequent action in securing the warrants was hearsay, since the officer\u2019s state of mind was induced by information received from the informant (Starks) and thus, constituted hearsay. Defense counsel explained to the court that the \u201cbest evidence\u201d of the officer\u2019s motivation would be the officer\u2019s testimony itself, except for the fact that his testimony would constitute hearsay also, and thus was inadmissible. The trial court indicated it felt counsel was \u201ctrying to have it both ways,\u201d and concluded that the assistant State\u2019s Attorney would be allowed to question the officer concerning the warrant and supporting affidavits. Upon returning to open court, however, the officer was not questioned concerning the content of the warrants or affidavits, but was questioned as to the fact of their existence. The warrants and supporting affidavits were later admitted into evidence, over defense counsel\u2019s renewed objection, and the jury thus had full access to them during its deliberations.\nDue to counsel\u2019s strenuous objections and arguments concerning the admission of that evidence, and the fact that the trial court apparently misunderstood the basis for counsel\u2019s objection, we cannot accept the State\u2019s waiver or invited error argument, particularly since we find the basis for defense counsel\u2019s objection to be well-taken. McCormick had the following to say about the type of testimony which the State\u2019s initial question to the officer in the case at bar was no doubt designed to elicit:\n\u201cIn criminal cases, the arresting or investigating officer will often explain his going to the scene of the crime or his interview with the defendant, or a search or seizure, by stating that he did so \u2018upon information received\u2019 and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.\u201d McCormick, Evidence sec. 248, at 587 (2d ed. 1972).\nThe possibility here that the jury misused the information contained in those improperly admitted documents prevents a finding of harmless error. As pointed out by the defendant, in addition to being improperly admitted as hearsay, the documents also constituted evidence that Starks had made prior statements consistent with his in-court testimony. A well-established general rule prohibits the use of a witness\u2019 prior consistent statement since it improperly bolsters the witness\u2019 in-court testimony. In the absence of exceptions to the rule (i.e., to refute the contention of recent fabrication of the in-court testimony, or a motive to testify falsely), bolstering a witness\u2019 testimony in this manner has been firmly established to amount to reversible error where the defendant has been substantially deprived of his right to a fair trial in that the error may reasonably have contributed to his conviction. (People v. Tidwell (1980), 88 Ill. App. 3d 808; People v. Hudson (1980), 86 Ill. App. 3d 335.) Although the jury acquitted Stout of the burglary and forgery charges, there is a reasonable possibility that the error contributed to the jury\u2019s decision to convict him of theft over $150. We note the exhibits were improperly admitted for a third reason as well: because the supporting affidavits clearly implicate Stout in another crime for which he was not then being tried, namely, the burglary of the Lakemoor Village Hall.\nBecause of our disposition of the first and third issues raised by Stout, we find it unnecessary to consider the sentencing issue.\nThe judgment of the circuit court of McHenry County is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nSEIDENFELD, P.J., and VAN DEUSEN, J., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "G. Joseph Weller and Josette Skelnik, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Theodore Floro, State\u2019s Attorney, of Woodstock (Phyllis J. Perko and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT STOUT, Defendant-Appellant.\nSecond District\nNo. 81\u2014200\nOpinion filed December 7, 1982.\nG. Joseph Weller and Josette Skelnik, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nTheodore Floro, State\u2019s Attorney, of Woodstock (Phyllis J. Perko and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0830-01", "first_page_order": 852, "last_page_order": 860 }