{ "id": 2613612, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Bailey, Defendant-Appellant", "name_abbreviation": "People v. Bailey", "decision_date": "1974-02-19", "docket_number": "No. 57088", "first_page": "80", "last_page": "86", "citations": [ { "type": "official", "cite": "18 Ill. App. 3d 80" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "296 N.E.2d 387", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill.App.3d 232", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2930946 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0232-01" ] }, { "cite": "282 N.E.2d 138", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill.2d 198", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392610 ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0198-01" ] }, { "cite": "191 N.E. 264", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "357 Ill. 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5281220 ], "opinion_index": 0, "case_paths": [ "/ill/357/0141-01" ] }, { "cite": "196 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill.2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827646 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0381-01" ] }, { "cite": "161 N.E.2d 300", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill.2d 160", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334974 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0160-01" ] }, { "cite": "169 N.E. 180", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "337 Ill. 531", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5235217 ], "opinion_index": 0, "case_paths": [ "/ill/337/0531-01" ] }, { "cite": "228 N.E.2d 599", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill.App.2d 423", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2554196 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/84/0423-01" ] }, { "cite": "68 N.E.2d 467", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "394 Ill. 255", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2471004 ], "opinion_index": 0, "case_paths": [ "/ill/394/0255-01" ] }, { "cite": "276 N.E.2d 782", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill.App.3d 324", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2755540, 2746255 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0324-02", "/ill-app-3d/2/0324-01" ] }, { "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": "235 N.E.2d 625", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill.2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857618 ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0265-01" ] }, { "cite": "197 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill.2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826151 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0400-01" ] }, { "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": "266 N.E.2d 431", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "131 Ill.App.2d 36", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2911458 ], "weight": 2, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0036-01" ] }, { "cite": "122 N.E.2d 568", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill.2d 244", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2700365 ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0244-01" ] }, { "cite": "190 N.E.2d 738", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "28 Ill.2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363269 ], "year": 1940, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0116-01" ] }, { "cite": "18 Ill.App.3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2613321 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0087-01" ] } ], "analysis": { "cardinality": 654, "char_count": 15722, "ocr_confidence": 0.719, "pagerank": { "raw": 4.9766071069410786e-08, "percentile": 0.31283233115135284 }, "sha256": "ebf158f7b25797016d9bcec8594cc0c9ae8eee0de216dd7cd08025851d2a63fb", "simhash": "1:832ab6213e9e80b0", "word_count": 2632 }, "last_updated": "2023-07-14T18:19:57.388760+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. Melvin Bailey, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LEIGHTON\ndelivered the opinion of the court:\nA sixteen-count indictment charged defendant Melvin Bailey and two codefendants, Andrew McChristian, Edward Dinkins, with aggravated assault and aggravated battery on five persons, attempts to murder and a conspiracy to murder the same five people. Prior to their trial, on motion of the State, the charges of aggravated assaults and aggravated batteries were dismissed. Defendant, McChristian and Dinkins then went to trial before a jury on the remaining counts.\nAt tire close of the State\u2019s evidence, the trial court directed the acquittal of Dinkins on all the charges. However, the State\u2019s cases against defendant and McChristian went to the jury. It returned verdicts that acquitted McChristian of the attempts to murder but found him guilty of conspiracy. Defendant was found guilty of the five attempts and the conspiracy; the trial court sentenced him to serve six concurrent terms of ten to fifteen years. McChristian took a separate appeal; and in an opinion which contains a detailed statement of the facts from which the charges arose, we have today reversed his conviction. People v. McChristian, 18 Ill.App.3d 87.\nIn this appeal, the only substantive issue is whether the State\u2019s impeachment of a court witness introduced hearsay evidence that prejudiced defendant\u2019s right to a fair trial. Since this issue is raised from events that occurred at the trial, and our opinion in McChristian states the facts which underlie the indictment, we will not restate the events that gave rise to the charges, except as our discussion of the issue may require.\nI.\nAt defendant\u2019s trial, the third witness called by the State was David Barksdale, one of five persons named in the indictment as victims of the assaults, the batteries, the attempts and the conspiracy to murder. Barks-dale refused to testify because he feared self-incrimination. Because he invoked his right not to incriminate himself, the State petitioned the trial court to grant him immunity. This was done, and immediately thereafter, one of the assistant state\u2019s attorneys made an oral motion that Barksdale be called as a courts witness. The defendants objected, but after a hearing outside the jury\u2019s presence, the motion was granted with the understanding that the trial judge was to tell the jury that Barksdale was a court\u2019s witness, one whose testimony was not vouched for either by the prosecution or the defense.\nBarksdale then testified and in answer to questions asked by an assistant state\u2019s attorney, told the jury that on the evening of May 8, 1968, he drove his automobile past 6526 South EHis Avenue, Chicago, and shooting of guns erupted. He said he did not know who shot at his automobile. Although he said he knew the defendant, he denied seeing him on the evening of May 8, 1968, at or near 6526 South Ellis. In answer to a question, Barksdale said that he saw McChristian and Dinkins at the scene of the shooting, but he did not see them fire any guns at his automobile. He denied seeing either Dinkins or McChristian with a gun in his possession. Barksdale was asked whether at a police station, after the shooting, he saw defendant and McChristian and had a conversation with them. His answer was that he saw them there, but that \u201cthey remained silent.\u201d\nBarksdale was then asked whether in the state\u2019s attorney\u2019s office, shortly after the May 8, 1968, shooting, he spoke to an assistant state\u2019s attorney and on that occasion said that defendant, McChristian and Dinkins \u201cshot at me on May 8\u201d. Barksdale admitted making the statement, but said that what he said on that occasion was a lie. Then, Barks-dale was asked whether eight months before the trial he was in the state\u2019s attorney\u2019s office, where, in the presence of one of the three policemen, he told the assistant state\u2019s attorney in the case that defendant and McChristian shot at him on May 8, 1968. Barksdale\u2019s answers were at first evasive; but he was pressed by questions aimed at determining whether it was time he had said, eight months before the trial, that the defendants had fired at him on May 8, 1968. After a number of questions to which he gave unresponsive answers, Barksdale said that he made the staatement; but at the time, he was angry, and \u201cI would have said anything.\u201d Next, Barksdale was asked whether a week before the trial he had not made statements to an assistant state\u2019s attorney that defendant, McChristian and Dinkins had guns in their possession on May 8, 1968, and had shot at him. He said he had because he was angry at one of the policemen and \u201c1 was still mad at Bailey [the defendant].\u201d Then, he was asked whether he had been questioned the day of the trial concerning the shooting incident of May 8, 1968. Barksdale said he had. The assistant state\u2019s attorney who was questioning him asked Barksdale, \u201cAnd did you tell me this afternoon that Melvin Bailey shot at you on May 8, 1968?\u201d Barksdale answered, \u201cI told you that because I came down to court\u2014I am in court.\u201d The assistant state\u2019s attorney then turned to the trial judge and asked, \u201cYour Honor, may I just have an answer?\u201d Barksdale was directed by the trial court to answer the question. His response was, \u201cYes.\u201d Further questions were put to Barksdale concerning McChristian. After answers, some evasive, some unresponsive, the assistant state\u2019s attorney asked Barksdale, \u201cDid you tell Mr. Novelle and myself today, this afternoon, that you saw Mr. McChristian with\u2014 Mr. Dinkins with a rifle in the 6500 block of South Ellis?\u201d Barksdale answered, \u201cYes.\u201d\nBarksdale was then asked whether sometime after May 8, 1968, he had not told an assistant state\u2019s attorney, Matthew Walsh, about a conversation he had with defendant and McChristian in the area police station the evening of May 8, 1968, after the shooting. Barksdale was asked whether defendant had said to him, \u201cI missed you this time.\u201d After first making an unresponsive answer, Barksdale admitted telling Walsh about the conversation, but said he did so because he was angry. When asked if he told Walsh that McChristian had said to him, \u201cWe will get you next time,\u201d Barksdale said that he did, but \u201cI was still lying, though.\u201d After being pressed by further questions concerning a conversation which the State claimed he had with defendant and McChristian the evening of May 8, 1969, Barksdale disclaimed recollection of it.\nTo impeach Barksdale, the State announced it was calling Matthew Walsh. There were objections by all the defendants. As a result, the trial judge agreed that before Walsh testified he would tell the jury\n\u201c* * * that while it is proper to impeach or discredit a witness by proving statements made by such witnesses at some other time and place, different from the testimony in this case on trial, still any statement that any witness may have made at such other time and place is not to be considered by you as any evidence as to the guilt or innocence of the defendant or any of them. Evidence that on some former occasion a witness made a statement different from or inconsistent with his testimony in this case should only be considered by you in deciding tire weight to be given that witness [szc].\u201d\nDefendants insisted on their objections, but Walsh was allowed to testify that in his office \u201c* * * last Friday at approximately 1:15 P.M.,\u201d Barksdale told him \u201cthat Bailey made a comment to him about the fact that they didn\u2019t get him that night or they were sorry they didn\u2019t get him. And McChristian began laughing and said, we will get you next time.\u201d After several of defendants\u2019 objections were overruled, Walsh was permitted to tell the jury that as Barksdale was leaving his office, he asked him, \u201c* * * as I had once or twice during the conversation, * * * if what he was telling me was the truth. He indicated it was the truth and I aslced him at that time whether or not he could testify to the truth in court, and he shrugged his shoulders at that time. And I said, are you afraid of them, meaining\u2014Walsh was interrupted by an objection of one defense counsel; and in response, the trial court ruled that \u201c[t]he last part of the answer is stricken and the jury is instructed to disregard it.\u201d Then Walsh was asked, \u201cDid Mr. Barksdale tell you that what he told you, the\u2014concern the facts in this case, was the truth?\u201d Walsh answered, \u201cYes, he did.\u201d\nIt is from this examination of Barksdale, and his impeachment through the testimony of Matthew Walsh, that defendant contends he was prejudiced by inadmissible hearsay evidence which the jury was allowed to hear and on which they returned their verdicts finding him guilty of five attempts to murder and conspiracy to murder five persons.\nII.\nIn determining whether this contention is sound, we are constrained to observe that when Barksdale first testified, he told the jury that neither defendant, McChristian nor Dinkins, fired at him or his companions when on the evening of May 8, 1968, he drove his automobfie past 6526 South Ellis Avenue in Chicago. However, it was the State\u2019s theory that this was not the truth. The truth, according to the State, was that the three defendans fired guns a Barksdale and his companions on the evening in question, a truth' which Barksdale had asserted to four assistant state\u2019s attorneys. Therefore, to prove the truth of what Barksdale had asserted, the State, by the questions its attorneys asked him, and by Walsh\u2019s testimony, established that Barksdale, out of court, had accused defendant, McChristian and Dinkins of shooting at his automobile, as the State claimed. This was hearsay evidence.\n\u201cHearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.\u201d (People v. Carpenter, 28 Ill.2d 116, 121, 190 N.E.2d 738; Wigmore on Evidence (3d ed. 1940), \u00a7 1361 et seq.; Cleary, Handbook of Illinois Evidence (2d ed. 1963), \u00a7 17.1.) It was not admissible. (People v. Hundley, 4 Ill.2d 244, 122 N.E.2d 568.) The only question is whether admission of this hearsay evidence prejudiced the defendant.\n\u2022 2 It has been held that when a witness is made a court\u2019s witness, he may be cross-examined by either side; but his cross-examination should be strictly limited to the direct issue. (See People v. Kimbrough, 131 Ill.App.2d 36, 266 N.E.2d 431.) In this case, Barksdale was the only victim of the crime who appeared as a witness. He was made the court\u2019s witness at the State\u2019s request, and when he first testified, he gave evidence which, if believed by the jury, would have exculpated all the defendants on trial. For this reason, elementary fairness would dictate that the State could, within limits and with proper cautionary instructions, impeach Barksdale even with prior inconsistent statements he might have made. (See People v. Marino, 44 Ill.2d 562, 256 N.E.2d 770; People v. Tate, 30 Ill.2d 400, 197 N.E.2d 26.) However, in the attempt to impeach Barksdale, the State could not introduce hearsay evidence that bore directly on defendant\u2019s guilt or innocence. (People v. McKee, 39 Ill.2d 265, 235 N.E.2d 625; People v. Collins, 49 Ill.2d 179, 274 N.E.2d 77; People v. Bacon, 2 Ill.App.3d 324, 276 N.E.2d 782.) Nor could the State impeach Barksdale on matters collateral to the issue before the jury. People v. Boulahanis, 394 Ill. 255, 68 N.E.2d 467; People v. Yocca, 84 Ill.App.2d 423, 228 N.E.2d 599.\nWe have examined the record and find that, contrary to the State\u2019s argument in this appeal, the questions asked Barksdale concerning his out-of-court assertions were numerous and repetitious, all aimed at putting before tire jury his statements, made to four assistant state\u2019s attorneys, that defendant, McChristian and Dinkins had fired on his automobile on the evening of May 8, 1968. Thus, in the attempt to impeach Barks-dale, the State put into evidence inadmissible hearsay that touched directly on defendant\u2019s guilt of the crimes for which he was on trial. (See People v. Barragan, 337 Ill. 531, 169 N.E. 180; People v. Tunstall, 17 Ill.2d 160, 161 N.E.2d 300.) By the questions asked him and the answers that the State extracted from him, the jury was repeatedly told that on three occasions Barksdale had accused defendant, McChristian and Dinkins of firing at him and his companions on the evening in question. This was prejudicial evidence. See People v. Paradise, 30 Ill.2d 381, 196 N.E.2d 689.\nThe testimony of Matthew Walsh intensified the prejudicial effect of Barksdale\u2019s cross-examination. Walsh told the jury that in their conversation, Barksdale told him that in the police station defendant admitted having shot at him the evening of May 8, 1968, and that McChristian laughed and said, \u201cWe will get you next time.\u201d Then, Walsh, over defendant\u2019s objection, was allowed to testify that he asked Barksdale whether what he said was the truth and Barksdale assured him that it was. It is true that, before Walsh testified, the trial court gave the jury an instruction which cautioned them about their consideration of any prior inconsistent statement of a witness. However, this instruction was confusing to say the least; tire inconsistent statements to which it referred were plainly prejudicial. Therefore, as we had occasion to say in People v. Kimbrough, 131 Ill.App.2d 36, 45, 266 N.E.2d 431, \u201cWe do not believe that the prejudicial effect of such evidence upon the jury could be effectively controlled by the court\u2019s admonitions that [it] was being introduced solely for impeachment purposes.\u201d\nIn People v. Grigsby, 357 Ill. 141, 191 N.E. 264, the State called a woman as its witness to prove that on the night of the shooting in question, the defendant came to her home and told her that he \u201chad shot a couple of guys.\u201d Preliminary questions disclosed that her testimony was not going to be satisfactory to the state\u2019s attorney, who then asked leading questions. Objections to these were sustained by the trial court and the woman was withdrawn as a witness. A short time later, she was recalled and made the court\u2019s witness. Then, for a purpose analogous to Walsh\u2019s testimony in this case, she was subjected to cross-examination concerning statements she allegedly had made to the state\u2019s attorney and his secretary, consistent with the State\u2019s theory of what the defendant had told her the night of the shooting. The Illinois Supreme Court reversed the conviction, holding it was prejudicial error for the trial court to allow the State to cross-examine the witness on what was a collateral issue. We reach the same conclusion in this case. The issue before the jury was not whether Barksdale told the truth when he spoke to the four assistant state\u2019s attorneys; the issue was whether defendant was guilty of attempts to murder Barksdale and his four companions and of conspiring with McChristian to do so. Therefore, the trial court erred in permitting the State to place before the jury hearsay evidence that prejudiced the defendant\u2019s right to a fair trial. The judgment is reversed and the cause is remanded for a new trial. People v. Montgomery, 51 Ill.2d 198, 282 N.E.2d 138; People v. Hannah, 11 Ill.App.3d 232, 296 N.E.2d 387.\nReversed and remanded with directions.\nHAYES, P. J., and DOWNING, J., concur.", "type": "majority", "author": "Mr. JUSTICE LEIGHTON" } ], "attorneys": [ "Kenneth L. Gillis and Jack P. Rimland, both of Chicago, for appellant.", "Edward V. Hanrahan, State\u2019s Attorney, of Chicago (Elmer C. Kissane and Patrick J. McNally, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Bailey, Defendant-Appellant.\n(No. 57088;\nFirst District (2nd Division)\nFebruary 19, 1974.\nKenneth L. Gillis and Jack P. Rimland, both of Chicago, for appellant.\nEdward V. Hanrahan, State\u2019s Attorney, of Chicago (Elmer C. Kissane and Patrick J. McNally, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0080-01", "first_page_order": 100, "last_page_order": 106 }