{ "id": 2548708, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE J. BARTEE, JR., Defendant-Appellant", "name_abbreviation": "People v. Bartee", "decision_date": "1991-01-30", "docket_number": "No. 2\u201489\u20140256", "first_page": "105", "last_page": "110", "citations": [ { "type": "official", "cite": "208 Ill. App. 3d 105" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "179 Ill. App. 3d 565", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2609273 ], "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0565-01" ] }, { "cite": "73 Ill. App. 3d 607", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3261574 ], "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0607-01" ] }, { "cite": "121 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201150 ], "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0401-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "127 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3563980 ], "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0365-01" ] }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "weight": 4, "pin_cites": [ { "page": "105-07" }, { "page": "107" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "857 F.2d 436", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10528381 ], "weight": 7, "pin_cites": [ { "page": "444" }, { "page": "445" }, { "page": "445" }, { "page": "445" }, { "page": "445-46" }, { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/f2d/857/0436-01" ] }, { "cite": "475 U.S. 157", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6199238 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/475/0157-01" ] } ], "analysis": { "cardinality": 630, "char_count": 11700, "ocr_confidence": 0.738, "pagerank": { "raw": 9.295848058391812e-08, "percentile": 0.5123723429435462 }, "sha256": "108cece3e63beafb61ebe8fc72946082db61bdce002ab7fcf72fdf32ed471ab3", "simhash": "1:17c87429234565da", "word_count": 1891 }, "last_updated": "2023-07-14T21:36:42.825942+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. EDDIE J. BARTEE, JR., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nDefendant Eddie J. Bartee, Jr., was charged by indictment with one count of attempted armed robbery (Ill. Rev. Stat. 1989, ch. 38, pars. 8 \u2014 4(a), 18 \u2014 1(a)). Following trial by jury, defendant was found guilty as charged and sentenced to a 12-year term of imprisonment. Defendant now appeals his conviction. We affirm.\nMidway through the trial, defendant\u2019s counsel advised the court \u201cthat during the course of the trial something happened\u201d between defendant and him which required counsel to withdraw from the case and forbade his placing defendant on the stand to testify. Counsel stated that he was precluded from telling the court the exact nature of the problem that had arisen but did cite to the court the case of Nix v. Whiteside (1986), 475 U.S. 157, 89 L. Ed. 2d 123, 106 S. Ct. 988, which dealt with an attorney\u2019s obligations when he knows his client intends to commit perjury, and Supreme Court Rules 4 \u2014 101, 2\u2014 110(b)) and 7-102 (107 Ill. 2d Rules 4-101, 2-110(b), 7-102). The court denied counsel\u2019s motion to withdraw, but ruled that defendant would testify in a narrative form without questioning from his counsel. The court also ordered defense counsel not to comment on defendant\u2019s testimony in his closing argument. Defendant did testify in a narrative form.\nDefendant now contends that he was denied the right to effective assistance of counsel and a fair trial by the court\u2019s order requiring him to testify in a narrative form. Defendant argues that the court should not have accepted counsel\u2019s opinion that defendant was going to commit perjury without first determining that counsel had a firm factual basis for his belief. He, therefore, prays this court to remand the cause for an evidentiary hearing. To support this theory, defendant cites United States v. Long (8th Cir. 1988), 857 F.2d 436. The court there held that defense counsel was \u201crequired to take such measures as would give him \u2018a firm factual basis\u2019 for believing [defendant] would testify falsely.\u201d (Long, 857 F.2d at 444.) The court further held that \u201ca clear expression of intent to commit perjury is required before an attorney can reveal client confidences.\u201d (Long, 857 F.2d at 445.) While attempting to factually distinguish the case of Nix v. Whiteside (1986), 475 U.S. 157, 89 L. Ed. 2d 123, 106 S. Ct. 988, the Long court often relied on the rationale of certain concurring opinions from Nix. The court reasoned, as did Justice Blackmun in Nix, that an attorney that informs the court of his belief of possible perjury by his client \u201ctakes on the role of the fact finder, a role which perverts the structure of [an] adversary system.\u201d (Long, 857 F.2d at 445.) The court also focused on the reasons given by Justices Blackmun and Stevens for limiting court notification of possible perjury to \u201cannounced plans\u201d to commit perjury: counsel\u2019s perceptions may be incorrect, the client may more clearly recollect certain details that contradict prior recollections, and that even a stated intent to perjure one\u2019s self does not necessarily mean that the client will lie once sworn in on the stand. (Long, 857 F.2d at 445.) These reasons, and others, compelled the Long court to hold that \u201cit is absolutely essential that a lawyer have a firm factual basis before adopting a belief of impending perjury.\u201d (Long, 857 F.2d at 445-46.) Because the record did not disclose whether defense counsel had such a basis for believing his client would testify falsely, such a finding could only be adequately determined after an evidentiary hearing. Long, 857 F.2d at 446.\nWe note that this State has never adopted the \u201cfirm factual basis\u201d test proposed in Long. While not dealing with the exact issue present in the case before us, People v. Flores (1989), 128 Ill. 2d 66, provides guidance and implicitly rejects the Long standard. In Flores, defendant contended in a petition for post-conviction relief that his attorney had been ineffective because, among other things, he had not called several of defendant\u2019s family members to testify in support of defendant\u2019s alibi. Defense counsel testified at the post-conviction hearing that he did not call the family members to testify because he found the alibi to be unreliable; defendant\u2019s various statements were contradictory, as were those of members of defendant\u2019s family. (Flores, 128 Ill. 2d at 105-07.) On appeal to the supreme court, defendant argued that mere suspicion by defense counsel that testimony is perjurious is insufficient; actual knowledge of the perjury is required before counsel can refuse to call an alibi witness. The supreme court disagreed, holding:\n\u201c[D]efense counsel should have discretion to make a good-faith determination whether particular proposed witnesses for the defendant would testify untruthfully. Absent some showing that counsel\u2019s decision was unreasonable under the circumstances, we cannot say that the defendant was denied a fair trial as a consequence of counsel\u2019s election not to call the members of his family to present an alibi. For the same reason, defense counsel was not incompetent in refusing to permit the defendant to testify to the purported alibi.\u201d (Emphasis added.) (Flores, 128 Ill. 2d at 107.)\nThe court clearly adopted a less stringent test of a \u201cgood-faith determination\u201d by defense counsel that witnesses will perjure themselves. Defendant here argues that the Flores approach does not apply to this case because the defendant\u2019s right to testify was not involved in Flores. Defendant\u2019s reading of Flores is incomplete. The court applied the same reasoning to counsel\u2019s refusal to permit defendant to testify to the alibi. (See Flores, 128 Ill. 2d at 107.) We are not told how counsel was able to refuse to permit defendant to testify to the alibi. However, the court granted great discretion to defense counsel in determining whether the testimony would be truthful. There is no indication that our supreme court requires a demonstrable \u201cfirm factual basis\u201d for counsel\u2019s belief. Additionally, the court\u2019s holding in no way refers to defendant\u2019s choice of remedy, a hearing to determine the basis for counsel\u2019s belief. Defendant would require an evidentiary hearing before counsel could move to withdraw or have a defendant testify in narrative form. Defendant cites no case, other than Long, that would require such action. We decline to adopt the holding in Long and conclude that defendant was not denied a fair trial or effective assistance of counsel by having to testify in the narrative.\nDefendant next contends that the court erred in not giving him an opportunity to present redirect testimony after he was cross-examined by the State. Neither defendant nor his attorney requested such an opportunity. The scope of redirect examination is within the discretion of the trial court. (People v. Washington (1984), 127 Ill. App. 3d 365, 382.) The court can hardly be accused of abusing its discretion when it was not asked to exercise and did not exercise its discretion. Defendant has failed to show an abuse of discretion; no new trial is required on this basis.\nDefendant next contends that he was improperly denied the opportunity to impeach the complaining witness Antonio Delgado with proof that Delgado\u2019s trial testimony differed from the statement Delgado gave to the police the day after the offense occurred. On cross-examination, Delgado denied giving to police officer Brictson a statement of the events of the night in question which differed in many material respects with the testimony he had just given on direct examination. Defendant later called Officer Brictson to testify as to what Delgado told him on the day after the alleged incident. The State objected, arguing that the proper foundation had not been laid to impeach Delgado. Delgado had given his statement to Brictson through Delgado\u2019s wife, who acted as interpreter; Delgado spoke little English while Brictson spoke no Spanish. The State successfully contended that the proper party to impeach Delgado was Delgado\u2019s wife; defense counsel never called her to testify.\nOfficer Brictson was the proper party to impeach Delgado. However, Delgado\u2019s wife was necessary to the foundation needed for Brictson\u2019s testimony. Only Delgado\u2019s wife could testify as to the accuracy of the statement given to Brictson. Without testimony from Delgado\u2019s wife that she accurately interpreted her husband\u2019s statements and accurately related them to Brictson, Brictson\u2019s testimony was inadmissible. The court, therefore, properly excluded Officer Brictson\u2019s testimony.\nDefendant next argues that he was denied a fair trial by the complaining witness\u2019 testimony on redirect examination. We note that defendant failed to object at trial on the grounds raised here and to include the issue in his post-trial motion. Such failures waive the issue. See People v. Enoch (1988), 122 Ill. 2d 176, 186.\nEven if we were to consider this issue, defendant\u2019s argument would fail. During cross-examination, defendant questioned Delgado about Delgado\u2019s refusal to cooperate with defense counsel prior to trial. On redirect, the prosecutor asked:\n\u201cMr. Delgado, is it correct that you and your family have been threatened not to come to testify in court?\u201d\nA defense objection to the question was sustained, and the jury was instructed to disregard Delgado\u2019s affirmative response. The court, however, allowed the State to go into the issue to show why Delgado refused to talk to defense counsel. When asked about a particular telephone call received prior to a hearing date, Delgado responded:\n\u201cI was called on that very day and told that if I showed up in court \u2014 .\u201d\nThe court did not allow Delgado to get into the substance of the telephone call. However, Delgado later asserted that he recognized the voice from the phone call \u201cas the voice of a black person.\u201d Defendant here is black. No objection was made to this answer.\nDefendant now argues that the redirect examination was not designed to show why Delgado refused to speak to defense counsel before trial, but to insinuate that defendant, or someone on his behalf, was attempting to intimidate Delgado. Furthermore, defendant argues, no evidence was ever presented to tie defendant to the alleged intimidating call.\nWhere the door to a subject is opened by the defense on cross-examination, the State may, on redirect, question the witness to explain or clarify matters brought out during cross-examination. (People v. Thompkins (1988), 121 Ill. 2d 401, 444.) A witness may be questioned in such a way as to remove unfavorable inferences or impressions raised during cross-examination. (People v. Sanchez (1979), 73 Ill. App. 3d 607, 610.) The decision to admit or exclude such evidence is within the discretion of the trial court. (People v. Chambers (1989), 179 Ill. App. 3d 565, 577.) Here, defendant attempted to show that Delgado was not cooperative with defense counsel\u2019s preparation of a defense. We conclude that it was not erroneous to allow the State to rehabilitate its witness by allowing him to testify as to why he was uncooperative.\nFor these reasons, the judgment of the circuit court of Kane County is affirmed.\nAffirmed.\nREINHARD, P.J., and GEIGER J., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "G. Joseph Weller, Francine Harrison, and Kathleen J. Hamill, all of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Gary V. Johnson, State\u2019s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE J. BARTEE, JR., Defendant-Appellant.\nSecond District\nNo. 2\u201489\u20140256\nOpinion filed January 30, 1991.\nG. Joseph Weller, Francine Harrison, and Kathleen J. Hamill, all of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nGary V. Johnson, State\u2019s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0105-01", "first_page_order": 127, "last_page_order": 132 }