{ "id": 3536011, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME FOSTER, Defendant-Appellant", "name_abbreviation": "People v. Foster", "decision_date": "1986-06-19", "docket_number": "No. 84\u20142618", "first_page": "477", "last_page": "482", "citations": [ { "type": "official", "cite": "145 Ill. App. 3d 477" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "581 F. Supp. 423", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3647774 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "431" }, { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/f-supp/581/0423-01" ] }, { "cite": "363 N.E.2d 1212", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1216-17" } ], "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 174", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5635345 ], "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0174-01" ] }, { "cite": "390 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 576", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581495 ], "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0576-01" ] }, { "cite": "382 U.S. 406", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182781 ], "weight": 3, "pin_cites": [ { "page": "416" }, { "page": "465" }, { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/us/382/0406-01" ] }, { "cite": "412 N.E.2d 669", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "676-77" } ], "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5537381 ], "year": 1976, "pin_cites": [ { "page": "957" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0947-01" ] }, { "cite": "768 F.2d 161", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 356415 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/f2d/768/0161-01" ] }, { "cite": "65 Ill. 2d 579", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "356 N.E.2d 1274", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "1277" }, { "page": "1277" }, { "page": "1278" } ], "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2725295 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "286" }, { "page": "286-87" }, { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0283-01" ] } ], "analysis": { "cardinality": 570, "char_count": 10355, "ocr_confidence": 0.759, "pagerank": { "raw": 1.2828625071070638e-07, "percentile": 0.618048002026373 }, "sha256": "b775633c91a30890d37ae617343e2b30fd23aa96593e1ef5c8ae1068f0b13b3f", "simhash": "1:092fa0be6796cad1", "word_count": 1716 }, "last_updated": "2023-07-14T17:15:42.287354+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. JEROME FOSTER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nAfter a jury trial, Jerome Foster, defendant, was convicted of murder (HI. Rev. Stat. 1983, ch. 38, par. 9 \u2014 1), and sentenced to 35 years in the Department of Corrections.\nDefendant appeals his conviction and argues that it should be reversed because the trial court (1) abused its discretion in denying him the right to call a material witness, (2) erred in refusing to instruct the jury on the lesser-included offense of voluntary manslaughter, and (3) denied him his right to a fair trial.\nWe reverse and remand.\nThe record shows that on or about March 3, 1983, Raymond Collins, Eddie Tidsen, and Curtis Collins, the victim, were walking north on Lavergne Street, in Chicago, when a group of approximately 15 persons began chasing and taunting them. A scuffle ensued between Raymond Collins and Kenny Martin, one of the 15 individuals. Thereafter, as the crowd began to disperse, a shot was fired. The bullet struck Curtis in the chest; he died that same night.\nRaymond Collins testified that he, his cousin Curtis, and Eddie Tidsen were together on the evening in question. They were walking north on Lavergne Street when approximately 15 people began to shout gang slogans at them. Immediately thereafter, the 15 individuals pursued and caught them. The witness stated that he recognized one of the gang members as Kenny Martin, whom he knew because they attended the same high school. Raymond further testified that he and Kenny engaged in a shoving match; Eddie intervened and the gang began to disperse. At that moment, three individuals stepped from the crowd and approached them; defendant Foster was one of those individuals. Foster then pulled a gun from his jacket and shot Curtis. The record shows that the murder weapon was not recovered.\nOn cross-examination, Raymond testified that it was after nightfall when the incident occurred. He stated that he is nearsighted and that he was not wearing glasses or contact lenses at the time of the shooting. He further testified that there might have been four people, instead of three people, who approached them just before his cousin was shot.\nEddie Tidsen\u2019s testimony was similar to that of Raymond\u2019s. Kenny Martin, called by the State, testified that he was part of the gang of 15 people who chased the victim and his companions. He stated that on the evening of the incident he had, earlier, smoked marijuana. He further testified that he witnessed the shooting and that he saw defendant pull a gun from his coat and shoot Curtis. On cross-examination, Kenny stated that he had been questioned after the shooting by Ms. Lyons, assistant Public Defender. He recalled having informed Ms. Lyons that during the shooting he was involved in an altercation with Raymond, but he did not recall telling her that he did not see defendant with a gun.\nChristopher Hainey testified for the defense, stating that he worked as a student assistant for the Public Defender\u2019s office. He was present when Ms. Lyons interviewed Kenny Martin. Hainey testified that Kenny informed Ms. Lyons that he did not see defendant shoot the victim because, at the moment of the shooting, he was involved in a shoving match with Raymond.\nDefendant first argues that the trial court\u2019s refusal of his request to call Gregory Felcus as a defense witness is reversible error. We agree.\nThe record reveals that on the day before the jury was selected, defendant\u2019s attorney asked the trial court\u2019s permission to amend her discovery answer to add the name of Gregory Felcus as a witness. The State objected and the trial court, taking into account the State\u2019s objection, reserved its decision until a later date. After the State had presented its case, defendant\u2019s attorney again requested that she be allowed to amend the discovery answer to include Gregory Felcus and to call him as a material witness. The trial court denied her request, as a sanction for her failure to name Felcus on the initial discovery answer. Defendant\u2019s counsel indicated that although she knew Felcus would be a potential witness when she initially filed her discovery answer, she unintentionally failed to list his name on the original discovery answer.\nThe trial court did grant defendant\u2019s request to submit an offer of proof of what Felcus would testify to, if called. The record indicates that he was one of the 15 individuals who chased Curtis, Raymond, and Eddie; that he had witnessed the shooting; that he observed the altercation between Raymond and Kenny; that someone in the back of the crowd fired a gun; that the gunshot struck Curtis; and that defendant did not have a pistol in his hand and did not shoot the victim.\nThe trial court, as a sanction for refusal to comply with discovery, can deny a party the right to call a witness. (Ill. Rev. Stat. 1983, ch. 110A, par. 415(g).) However, we have concluded that the trial court\u2019s use of this sanction is not unlimited. When, as here, the trial court\u2019s sanction is the exclusion of a defense witness, we have determined that it must be applied only in the most extreme situations. (People v. Rayford (1976), 43 Ill. App. 3d 283, 286, 356 N.E.2d 1274, 1277, appeal denied (1977), 65 Ill. 2d 579.) Furthermore, basic due process requires that a defendant be permitted to offer the testimony of witnesses in his defense. Any restrictions on this right must be extremely limited and shown absolutely necessary to accomplish the goal intended for the restriction. See United States ex rel. Enoch v. Lane (7th Cir. 1985), 768 F.2d 161.\nThe court in People v. Mahdi (1980), 89 Ill. App. 3d 947, 957, 412 N.E.2d 669, 676-77, quoting People v. Rayford (1976), 43 Ill. App. 3d 283, 286-87, 356 N.E.2d 1274, 1277, stated as follows:\n\u201c \u2018The basic purpose of a trial is the determination of truth\u2019 (Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S. Ct. 459, 465, 15 L. Ed. 2d 453, 460); and the goal of pretrial discovery in both civil and criminal cases has been to promote the fact-finding process and to eliminate the tactical advantage of surprise by either side. Sanctions are designed to accomplish the purpose of discovery; but it is clear that the imposition of sanctions should not encroach on a fair trial. [Citation.] The exclusion of evidence is a drastic measure; and the rule in civil cases limits its application to flagrant violations, where the uncooperative party demonstrates a \u2018deliberate contumacious or unwarranted disregard of the court\u2019s authority.\u2019 [Citations.] The reasons for restricting the use of the exclusion sanction to only the most extreme situations are even more compelling in the case of criminal defendants, where due process requires that a defendant be permitted to offer testimony of witnesses in his defense. [Citation.] \u2018Few rights are more fundamental than that of an accused to present witnesses in his own defense.\u2019 [Citation.]\u201d\nWe have held it to be an abuse of discretion for the trial court to exclude a defense witness because the defendant\u2019s attorney unintentionally omitted the name of that witness from the list. (In re Lane (1979), 71 Ill. App. 3d 576, 580, 390 N.E.2d 82, 85.) Similarly, where the State is notified of the defendant\u2019s intent to call the excluded witness, and there is ample opportunity for the State to interview the witness, we have held it to be an abuse of discretion for the trial court to exclude a material witness. (People v. Pugh (1977), 49 Ill. App. 3d 174, 181, 363 N.E.2d 1212, 1216-17.) Finally, a defendant should not be penalized for his counsel\u2019s negligence. Moreover, penalizing a criminal defendant for his counsel\u2019s negligence only creates additional constitutional problems and invites attack on convictions based on incompetence of counsel. United States ex rel. Enoch v. Lane (N.D. Ill. 1984), 581 F. Supp. 423, 431, aff\u2019d (7th Cir. 1985), 768 F.2d 161.\nAs noted above, the record shows that defendant\u2019s attorney\u2019s failure to list the witness was unintentional. Moreover, defendant notified the court and the State of his intent to call the witness before the actual trial began. Under the circumstances of this case, the trial court abused its discretion in refusing defendant the right to call Felcus as a defense witness. Further, we note that the trial court should not consider excluding defense witnesses unless the State can show that it was prejudiced by the attorney\u2019s failure to list the witness. (United States ex rel. Enoch v. Lane (N.D. Ill. 1984), 581 F. Supp. 423, 432, aff\u2019d (7th Cir. 1985), 768 F.2d 161). In the case at bar, the State did not show that it was prejudiced thereby.\nA trial court\u2019s abuse of discretion in excluding a defense witness will constitute reversible error if it is prejudicial to defendant. (People v. Rayford (1976), 43 Ill. App. 3d 283, 288, 356 N.E.2d 1274, 1278.) In the instant case, the record indicates that the excluded witness\u2019 exculpatory testimony was extremely material to defendant\u2019s case, and its exclusion was prejudicial to defendant. Testimony from the State\u2019s primary witnesses \u2014 one a witness who had smoked marijuana several hours before the shooting occurred and another an eyewitness who is nearsighted but who was not wearing corrective lenses at the time of the shooting \u2014 consisted of contradictory statements. Surely Felcus\u2019 exculpatory testimony is material to the defendant\u2019s case when one evaluates the testimony of the State\u2019s witnesses. We conclude that the trial court committed reversible error in denying defendant\u2019s request to call Felcus as a defense witness.\nSince we find that the trial court committed reversible error in refusing defendant\u2019s request to call Felcus as a witness, we need not address defendant's remaining arguments.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nLINN, P.J., and JIGANTI, J., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Clyde Lemons, Jr., Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry and Sharon Johnson Coleman, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME FOSTER, Defendant-Appellant.\nFirst District (4th Division)\nNo. 84\u20142618\nOpinion filed June 19, 1986.\nJames J. Doherty, Public Defender, of Chicago (Clyde Lemons, Jr., Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry and Sharon Johnson Coleman, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0477-01", "first_page_order": 499, "last_page_order": 504 }