{ "id": 3626110, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL TAGLIA, Defendant-Appellant", "name_abbreviation": "People v. Taglia", "decision_date": "1983-03-16", "docket_number": "No. 82-5", "first_page": "260", "last_page": "264", "citations": [ { "type": "official", "cite": "113 Ill. App. 3d 260" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "409 N.E.2d 401", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3178782 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0763-01" ] }, { "cite": "334 N.E.2d 752", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 458", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2708823 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0458-01" ] }, { "cite": "197 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "30 Ill. 2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826151 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/30/0400-01" ] }, { "cite": "379 N.E.2d 746", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 176", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3338283 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0176-01" ] }, { "cite": "256 N.E.2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill. 2d 562", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2888588 ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0562-01" ] }, { "cite": "322 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "60 Ill. 2d 37", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415438 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/60/0037-01" ] }, { "cite": "274 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2910573 ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0179-01" ] }, { "cite": "361 N.E.2d 138", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 713", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2973608 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0713-01" ] }, { "cite": "400 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 31", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3230493 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0031-01" ] } ], "analysis": { "cardinality": 572, "char_count": 10081, "ocr_confidence": 0.749, "pagerank": { "raw": 8.11710411648219e-08, "percentile": 0.4680714976046866 }, "sha256": "ef5b4bf96c2dd4977b473fd3e38f416613891b6eaf1e03069a50bc82d6c84520", "simhash": "1:42771cc6046e9bfe", "word_count": 1646 }, "last_updated": "2023-07-14T20:40:35.449940+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. DANIEL TAGLIA, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE McNAMARA\ndelivered the opinion of the court:\nDefendant Daniel Taglia was charged with murder and armed violence. A jury found him guilty of both crimes, and the court sentenced him to 25 years. On appeal defendant contends that the trial court erred in denying his motion to suppress evidence; that prejudicial error resulted from the State\u2019s use of a prior inconsistent statement as substantive evidence of guilt absent a proper limiting instruction; and that prosecutorial misconduct so permeated the whole trial that it deprived him of a fair trial.\nThree eyewitnesses testified that on the evening of October 29, 1979, they saw defendant shoot and kill Phil Shepherd on a street in Cicero. One of the witnesses was a neighbor who was walking her dog when the shooting occurred. She identified defendant at a lineup and at trial. The other two witnesses were Brian Brusaw and Scott Adams.\nBrusaw testified that on the evening in question he and defendant were in a tavern when they were told that the deceased wanted to see Brusaw. After Brusaw gave a gun to defendant, they went outside. Defendant and the deceased started arguing and defendant shot the deceased. The day before, Brusaw and the deceased, using the same gun unsuccessfully tried to rob a man of money and narcotics. The pair also committed a robbery that morning. Brusaw previously had been convicted of burglary, theft and aggravated battery, and was currently serving five years for burglary. In exchange for his testimony, the State had agreed not to oppose a sentence reduction to time considered served. Brusaw had been hospitalized a few times for overdosing on drugs. He lived with defendant\u2019s sister in an apartment building owned by defendant.\nAdams testified that he and the deceased were driving around when they saw Brusaw and defendant. When the deceased emerged from the vehicle, he and defendant shouted at each other. Defendant then shot the deceased. Adams had a robbery charge pending against him. He had talked to the prosecutor about the charge, but they made no promise to him.\nDefendant testified that he did not know the deceased and had not shot him. That morning, defendant heard the deceased storm out of Brusaw\u2019s apartment shouting threats. Defendant warned his sister and Brusaw that if they were having trouble they should call the police.\nDefendant initially contends that the trial court erred in denying his motion to suppress evidence. The following pertinent testimony was adduced at the hearing on the motion.\nOfficer Leonard Rutka of the Cicero Police Department testified that after he left the scene of the shooting he went to defendant\u2019s apartment. He was invited in by defendant\u2019s 21-year-old daughter Amy. The officer informed Amy that he was investigating a shooting and she replied that she knew what had happened. She told the officer that she lived in the apartment and gave him permission to search the premises. The officer recovered a gun with one spent shell.\nDefendant testified that his daughter lived in River Forest and not with him. She kept no clothes or possessions at his apartment and visited him approximately once a month.\nAmy Taglia testified that she lived with her mother since her parents\u2019 divorce when she was five years old. She visited her father occasionally but had no possessions at his apartment. She did not recall whether she told the police she resided in the apartment or whether she gave them permission to enter the premises.\nWe view the matter of whether defendant\u2019s daughter had authority to consent to the search of the premises and whether she did in fact give such consent to have been questions of the credibility of the witnesses. A determination of that credibility is within the province of the trial court, and we may not disturb those findings unless they are contrary to the manifest weight of the evidence. (People v. Householder (1980), 81 Ill. App. 3d 31, 400 N.E.2d 988.) The trial court here accepted the testimony of the police officer and rejected the evidence offered by defendant. We may not substitute our judgment for that of the trial court.\nDefendant next contends that prejudicial error resulted from the State\u2019s use of a prior inconsistent statement of defendant\u2019s sister as substantive evidence of defendant\u2019s guilt without giving a proper limiting instruction.\nWhen the State called Mary Buse, defendant\u2019s sister, as a witness, she testified that defendant was not present when the shooting occurred. The prosecutor expressed surprise and was granted leave to examine her as a hostile witness pursuant to Supreme Court Rule 238. (87 Ill. 2d R. 238.) Through cross-examination, her five-page statement was read to the jury. The trial court did not give, nor did defendant request, a limiting instruction that the statement could not be used as substantive evidence of defendant\u2019s guilt. The assistant State\u2019s Attorney who took the sister\u2019s statement testified and also read the statement to the jury. The statement was introduced into evidence and, at the State\u2019s request, was given to the jury for use during their deliberations. During closing argument, among other references to defendant\u2019s sister, the prosecutor stated as follows:\n\u201cShe told Mr. Cavanaugh by her written signed statement, that she saw her brother, Dan Taglia, at the intersection of 21st Place and 49th Avenue, and not only did she see him, but she saw Ricky Shephard [sic] on the street at the same time she saw Dan Taglia. She saw no weapon in the hand of Ricky Shephard [sic]. She saw her brother with a gun in his hand right after hearing a shot. That\u2019s what Mary Buse saw. She saw Dan Taglia at the intersection two years ago and won\u2019t say it now.\u201d\nDuring rebuttal closing argument, defense counsel objected to the prosecutor\u2019s further reference to.defendant\u2019s sister because she had not been mentioned during defendant\u2019s argument. The prosecutor twice explained, in the presence of the jury, that it was proper argument because it referred to her identification of defendant.\nThe only instruction concerning the sister\u2019s out-of-court statement came in the court\u2019s charge to the jury. The court gave Illinois Pattern Jury Instruction, Criminal, No. 3.11 (2d ed. 1981) (hereinafter cited as IPI), which informed the jury that prior inconsistent statements could only be considered in determining credibility.\nThe decision to call an individual as a court\u2019s witness is discretionary with the trial court, and the decision will not be disturbed on appeal absent an abuse of discretion. (People v. Robinson (1977), 46 Ill. App. 3d 713, 361 N.E.2d 138.) In the present case, the trial court\u2019s decision to call defendant\u2019s sister as a court\u2019s witness was not an abuse of discretion.\nRemaining for our consideration, however, is defendant\u2019s argument that the impeachment technique employed was improper. Prior inconsistent statements, while not competent as substantive evidence, may be used for impeachment purposes to determine credibility. (People v. Collins (1971), 49 Ill. 2d 179, 274 N.E.2d 77.) And prior inconsistent statements which bear directly on defendant\u2019s guilt may be used for impeachment purposes provided the jury is cautioned at the time of impeachment and instructed at the end of the trial that the statements could not be given substantive effect. (People v. Bailey (1975), 60 Ill. 2d 37, 322 N.E.2d 804; People v. Marino (1970), 44 Ill. 2d 562, 256 N.E.2d 770.) Here, no such caution or instruction was given to the jury. The instruction which was given, IPI Criminal No. 3.11, was insufficient in itself to inform the jury that the impeachment evidence could not be considered substantively. (People v. Riley (1978), 63 Ill. App. 3d 176, 379 N.E.2d 746.) While a defendant who fails to offer a jury instruction generally waives his right to raise that claim of error on appeal, this court may recognize plain errors or defects affecting substantial rights, even though they were not brought to the attention of the trial court. (87 Ill. 2d R. 615(a).) We believe that in the present case, the .omission of a caution and limiting instruction, coupled with the impeachment technique utilized by the State in regard to the sister\u2019s statement, was so prejudicial that it amounted to plain error. (People v. Riley; People v. Robinson (1977), 46 Ill. App. 3d 713, 361 N.E.2d 138.) The information contained in the sister\u2019s prior inconsistent statement was -read into the record twice and was dwelt on excessively. The prosecutors emphasized the statement during dosing argument and indeed, over objection, candidly informed the court and jury that the statement was an identification and thus had substantive effect. (See People v. Tate (1964), 30 Ill. 2d 400, 197 N.E.2d 26; People v. Fields (1975), 31 Ill. App. 3d 458, 334 N.E.2d 752.) Nor can we say that the other competent evidence so overwhelmingly established defendant\u2019s guilt beyond a reasonable doubt that the error was harmless. (People v. Triplett (1980), 87 Ill. App. 3d 763, 409 N.E.2d 401.) Three eyewitnesses identified defendant, but only one of the witnesses was unbiased and without something to gain. Defendant took the stand and denied committing the crime. He was entitled to a trial free from such harmful error.\nIn view of our holding, it is unnecessary to consider defendant\u2019s other claim that certain comments of the prosecutor deprived him of a fair trial. The remarks are unlikely to recur in a new trial.\nFor the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings.\nReversed and remanded.\nMcGILLICUDDY and RIZZI, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McNAMARA" } ], "attorneys": [ "Ackerman & Egan, Ltd., of Chicago (Allan A. Ackerman, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, David A. Stoioff, and Stephen Erhard Eberhardt, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL TAGLIA, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 82\u20145\nOpinion filed March 16, 1983.\nAckerman & Egan, Ltd., of Chicago (Allan A. Ackerman, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, David A. Stoioff, and Stephen Erhard Eberhardt, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0260-01", "first_page_order": 282, "last_page_order": 286 }