{ "id": 2621789, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Jerome Payne, Defendant-Appellant", "name_abbreviation": "People v. Payne", "decision_date": "1975-07-07", "docket_number": "No. 58925", "first_page": "624", "last_page": "631", "citations": [ { "type": "official", "cite": "30 Ill. App. 3d 624" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "93 S.Ct. 1917", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "36 L.Ed.2d 399", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "411 U.S. 937", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9795, 9733, 10247, 9801, 10154, 9808, 10032, 10067, 9942, 10172, 10077, 10110 ], "opinion_index": 0, "case_paths": [ "/us/411/0937-12", "/us/411/0937-02", "/us/411/0937-06", "/us/411/0937-03", "/us/411/0937-11", "/us/411/0937-08", "/us/411/0937-05", "/us/411/0937-01", "/us/411/0937-09", "/us/411/0937-04", "/us/411/0937-07", "/us/411/0937-10" ] }, { "cite": "286 N.E.2d 792", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "6 Ill.App.3d 879", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467479 ], "weight": 2, "pin_cites": [ { "page": "884" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0879-01" ] }, { "cite": "390 U.S. 719", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177892 ], "weight": 6, "pin_cites": [ { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/us/390/0719-01" ] }, { "cite": "408 U.S. 204", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782725 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/408/0204-01" ] } ], "analysis": { "cardinality": 773, "char_count": 17357, "ocr_confidence": 0.723, "pagerank": { "raw": 2.13181829371203e-07, "percentile": 0.7659774759068965 }, "sha256": "1a675a3bb4c5e15217f1fe2d3c4ea68ec24a40dd3a50aef38455e8436047299f", "simhash": "1:b0c0558baf76eb5a", "word_count": 2951 }, "last_updated": "2023-07-14T21:56:28.126609+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 Payne, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE EGAN\ndelivered the opinion of the court:\nThe defendant, Jerome Payne, was tried for the robbery of Oscar Fallin, and a mistrial was declared on May 4, 1971, because the jury was unable to agree. At a subsequent trial the defendant was convicted on April 12, 1972, and sentenced to two to four years in the penitentiary.\nOscar Fallin testified at the first trial; but he was not present at the second trial, and a transcript of his previous testimony was read to the jury. The defendant\u2019s argument is that the previous testimony was inadmissible because the State failed to show that Fallin was dead; or alternatively, the State failed to show good faith diligence or was guilty of negligence in its efforts to produce Fallin.\nOn April 10, 1972, two days before the second trial began, the court conducted a hearing to determine whether it would permit the introduction of the previous testimony. The State called two witnesses, Chicago police officer John Brennan and Assistant State\u2019s Attorney Donald Novelle. Brennan was a vice control officer assigned to a district and had been a police officer for almost four years. He participated in the arrest of the defendant at 2 a.m. on July 22, 1970, and at that time he interviewed Oscar Fallin. Brennan later testified at the trial which resulted in a hung jury. He had not seen Fallin from the date that the first jury was discharged. He testified that he had made approximately 20 to 25 attempts to locate Fallin, the last time three days before the trial began when he went to Fallin\u2019s former residence and checked several associates of Fallin\u2019s and several gas stations where Fallin had previously been employed. He did not name the associates, nor the gas stations, nor did he specify the times that Fallin had worked at those gas stations. He first looked for Fallin when he received his own second trial subpoena in May or June, 1971. At that time he went to Fallin\u2019s residence at 3727 King Drive where he \u201cunderstood\u201d Fallin was living with his common-law wife. He could not remember tire woman\u2019s name but could recall that there was a telephone number at the 3727 King Drive address and that it was in the woman\u2019s name. Illinois Bell had no listing for an Oscar Fallin either in May or June, 1971, or on April 10, 1972. Fallin\u2019s common-law wife was no longer living at the King Drive address and neither was Fallin. Although he had been to the King Drive address three days before the trial, he did not know the names of the people that were then living there. He last talked to someone at that address about two months before, a boy of 12 or 13 who claimed not to know Oscar Fallin or where he could be found. He made a post office check which disclosed that Fallin left no forwarding address with the postal authorities. No date of that check was given by Brennan.\nHe visited Fallin\u2019s station at 40th and Drexel soon after the first trial and found that it was closed and boarded up. He went to the gas station at 43rd and Vincennes where Fallin had worked on several occasions. The owner, Mr. Harper, was unaware of Fallin\u2019s whereabouts. Without disclosing his source of information, Brennan testified that he \u201clearned\u201d that Fallin had taken some of his tools to Johnny\u2019s Standard Station on 47th Street between Drexel and Cottage sometime around April, 1971. He went to the station on several unspecified dates and spoke there with a person named Johnny. He could not remember Johnny\u2019s last name. He remembered last being there on February 1 or 2, 1972, when Johnny told him that Fallin\u2019s tools were no longer there. Johnny did not know Fallin\u2019s whereabouts either.\nBrennan went to a gas station located approximately two blocks from the 3727 King Drive address and spoke to the owner, a police officer named Jack Hightower. Fallin had worked there off and on. Brennan saw Hightower three days before the trial and was informed that High-tower did not know where Fallin could be reached.\nOn cross-examination Brennan testified he made no official or personal reports and made no notes concerning his efforts to locate Fallin. No one had told him at the time of the first trial to locate Fallin. He undertook the quest on his own shortly after he received the first of his own subpoenas for the second trial, sometime in June or in the summer of 1971. It was his job and department practice for him to find witnesses without instructions. His purpose in looking for Fallin was to notify him to be in court.\nBefore the first trial the State\u2019s Attorney\u2019s office was having difficulty locating Fallin and gave Brennan the Fallin subpoena which he served at the address, 3727 South King Drive. In June, 1971, he went to the third floor of 3727 South King Drive, which is a Chicago Housing Authority project. He did not know the apartment number, nor the persons with whom he spoke at that time. He did not remember any names. He did, however, remember that he identified himself as a police officer when he went through the apartment. The people there did not know Fallin, nor how to reach him. He did not check with any of the neighbors. He visited the Chicago Housing Authority and requested, but was refused, permission to see Fallin\u2019s housing application because Fallin\u2019s girlfriend was the lessee. He later visited the Chicago Housing Authority office and talked to an office guard, who in turn had someone in the office checking the records. Brennan did not see the records and could not recall having asked to examine the records or Fallin\u2019s girlfriend\u2019s rental application.\nHe once checked, sometime in 1971, with Michael Reese Hospital to see if Fallin\u2019s girlfriend was working there. He went to Michael Reese because Hightower told him that the woman was a nurse and that he thought she was employed at that hospital. The personnel office of Michael Reese advised him that the lady was not, and never had been, employed there as a nurse.\nBrennan was unaware of how one determines whether a particular individual owns a car in Illinois. He did check police records and learned that Fallin had several arrests, the nature of which was not disclosed except for the last one which was an arrest for unlawful use of weapons. Brennan had not heard and had not read Fallin\u2019s testimony at the first trial. No one, including the prosecutors, ever gave Brennan any background information to aid him in a search for Fallin; the only information he got was from people he talked with and he never talked to any of the neighbors. In June, 1971, he drove an unmarked police car around Fallin\u2019s \u201cgas station neighborhood\u201d and talked with various unnamed men \u201changing around\u201d at gas stations including Harper\u2019s station. None of the men knew Fallin\u2019s whereabouts. He did not know whether Harper\u2019s station was at 43rd and Vincennes or 43rd and Forrestville. He received subpoenas on six occasions; and each time he looked for Fallin in the same places that he had visited before.\nHe did not attempt to trace Fallin through the Social Security Administration since he did not know Fallin\u2019s Social Security number. He knew Fallin\u2019s mother was living but he never checked with her and never tried to find out her name.\nDonald Novelle, an Assistant State\u2019s Attorney, testified that he made several phone calls concerning Fallin on Friday, April 7, 1972, at about 2 p.m. He called Central Records at 11th and State with Fallin\u2019s criminal identification number and was informed that the last information they possessed on Fallin was an October, 1970, arrest. He learned from trite Cook County Coroner\u2019s Office that no death certificate had been issued! on Fallin. His associate called the Cook County Jail and the House of Correction and learned that neither institution had Fallin as an inmate,. Novelle did not have a subpoena issued for Fallin for the second trial..\nThe defendant testified that the Friendly Pool Hall, with which he; was familiar, burned to the ground in the winter of 1970, and was never: rebuilt. Brennan had testified that the Friendly Pool Hall, which he; visited looking for Fallin, was located at 42nd and Cottage Grove; but. the defendant testified that Brennan was wrong and that the pool hall was located at 46th and Cottage Grove. The State offered no rebuttal.\nThe defendant\u2019s first contention that the death of the declarant is an essential element of the admissibility of former recorded testimony must be rejected. Decisions of the United States Supreme Court tacitly accept the proposition that only unavailability of the witness, and not just death, need be shown. (Mancusi v. Stubbs, 408 U.S. 204, 33 L.Ed.2d 293, 92 S.Ct. 2308; Barber v. Page, 390 U.S. 719, 20 L.Ed.2d 255, 88 S.Ct. 1318.) The defendant argues that this court is not bound by these Federal decisions; that they are merely standards of minimal fairness; and that Illinois courts are free to impose more stringent requirements than the Federal courts. We accept the defendant\u2019s description of our power as an abstract proposition but note that an Illinois court has already passed on the question and has held that prior testimony is admissible where the \"witness cannot be located after diligent search.\u201d People v. Burton, 6 Ill.App.3d 879, 884, 286 N.E.2d 792, cert. denied, 411 U.S. 937, 36 L.Ed.2d 399, 93 S.Ct. 1917.\nThe dispositive question, then, is whether the record discloses reasonable diligence and good faith effort to locate and secure the presence of the witness in court. Good faith and reasonable diligence depend on the facts, of each case.\nThe responsibility for the conduct of the People\u2019s case rests with the; State\u2019s Attorney, and not the police. It is his duty to supervise and coordinate the efforts to locate the witness known to be missing. This record' discloses an absence of any such supervision or coordination.\nWhen Brennan was asked if he received any instruction from anybody to look for Fallin on Friday, three days before the trial, he said: \"The State\u2019s Attorney asked me if I, you know, would give it a try.\u201d The Assistant State\u2019s attorney testified as follows:\n\u201cQ. And did you tell him [Brennan] to go to look for Oscar Fallin?\nA. He had already informed the State he had looked for Oscar Fallin.\nQ. When?\nA. I don\u2019t recall when exactly he had looked for him. He said he had been to a service station that Mr. Fallin had frequented and no one there knew or had seen Mr. Fallin.\nQ. What time did you talk with Officer Brennan?\nA. It was sometime subsequent to 2:00 Friday.\nQ. Between 2:00 and 5:00?\nA. Sometime between those hours.\nQ. And he said he already looked for him?\nA. At one time or another. I don\u2019t know when.\nQ. Did you tell him to go look for him again?\nA. No, I did not.\nQ. Did he say he was going to look for him again?\nA. I don\u2019t recall.\nQ. Did you have a subpoena issued for Mr. Fallin?\nA. I had no subpoena issued for Mr. Fallin.\u201d\nThe State was aware that Fallin had been a difficult witness to locate for the first trial, but took no steps to insure his appearance later even though it knew that his testimony was essential to a conviction and that the case would be tried again. The prosecutors had given Brennan a subpoena to serve on Fallin for the first trial but none for the second. Fallin had testified that he had been the manager of a Standard service station at 75th and Jeffery; the prosecutors never informed Brennan of that fact, and Brennan never checked with any Standard dealer s association. Fallin had testified that he married his wife at City Hall in 1962 or 1963; Brennan was never informed of that, and he investigated on the assumption that the woman he was seeking (whose name he could not recall) was Fallin\u2019s \u201ccommon-law wife.\u201d Fallin had testified that he was with a man named Walter Anderson at Harper\u2019s station on the night of the robbery; Brennan was not informed of that and, consequently, made no attempt to locate Anderson. Fallin had testified that his wife was a licensed practical nurse; Brennan was apparently not informed of this either because his search, which was limited to one hospital, was for a registered nurse.\nOn the other hand, if tire prosecutors had properly questioned Brennan about his search, they would have learned what he had not done, and they could have directed him to do certain things or they could have done them themselves. For example, Fallin\u2019s work records could have been checked to determine his Social Security number. Or the prosecutors could have checked his arrest records, which, if they did not contain his Social Security number, would have contained his birth date, which, in turn, would have assisted in ascertaining his drivers license number and Social Security number. The prosecutors would have learned that Brennan had been refused information from the Chicago Housing Authority; and the prosecutors could have taken steps to acquire that information. The year 1972 was a Presidential election year, and they could have made, or directed Brennan to make, a voter registration check.\nApart from the failure of the prosecution to supervise and the failure to follow investigative leads, we judge that Brennan\u2019s conclusory testimony that he made \u201c20 to 25 attempts\u201d to locate Tallin is numerically impressive but qualitatively weak. As previously noted, he kept no records. He did not remember dates. He did not remember the name of Tallin\u2019s common-law wife or the names of the people occupying the apartment even though he had interviewed them three days before the trial. He never disclosed how he \u2018learned\u201d that Tallin had taken his tools to the station owned by Johnny, whose last name Brennan could not remember. He never disclosed how he learned that Tallin\u2019s mother was living. On each of the six occasions he received subpoenas, he looked for Tallin in the same places that he had visited before, thus recultivating fallow ground.\nAt the close of the hearing to determine the admissibility of the prior testimony, the court noted that the file showed that a number of subpoenas had been issued for Tallin and were returned not found. He apparently placed considerable reliance on that fact in arriving at his decision. But the subpoenas are not entitled to any weight supportive of the State\u2019s position because they are all issued to 3737 South King Drive, while Tallin testified he lived at 3727. The prosecutor and police never told the Sheriff\u2019s Office that the address was 3727 and that the witness had gone. If anything, the subpoenas highlight the lack of coordination in the effort to locate Tallin.\nIt must be kept in mind that the admission of prior recorded testimony is an exception to the constitutional right of confrontation. (Barber v. Page, 390 U.S. 719, 722, 20 L.Ed.2d 255, 88 S.Ct. 1318.) And the State has the burden of proving that the steps it took to procure the attendance of the missing witness were reasonable under the circumstances.\nIn our view, approval of introduction of the former testimony under these facts would encourage laxity rather than diligence and desultory searches rather than systematic and coordinated efforts by the prosecution and whatever investigative arm it employs. We believe the case upon which the State relies, People v. Burton, 6 Ill.App.3d 879, 286 N.E.2d 792, is distinguishable factually. Burton involved a reversal six years after conviction. Consequently, unlike this case, the prosecutors were not placed on notice that a new trial would be required. Two experienced investigators of the State\u2019s Attorney\u2019s staff were assigned to locate four witnesses. Apparently they were successful in locating two of them. Their investigation lasted 10-14 days and unlike Brennan, they kept records of their interviews with the missing witnesses\u2019 neighbors or ex-neighbors and with all persons in the vicinity of their last reported addresses. Again, unlike Brennan, they made voting registration checks including a personal visit by both investigators to an election commissioner; a post office check for forwarding addresses; the telephone directory; and personal interviews with the man who owned the apartment building for ten years where one witness reportedly last lived and with a minister who lived for the past nine years at the last known address of the other. Unlike this case, they had no record of previous employment of the missing witnesses; consequently, they were unable to check on the last known place of employment. Unlike Brennan, they left a phone number for the persons they interviewed to call. Moreover, it must be emphasized, they were walking over a trail six years, not four months, old.\nFor these reasons we judge that the State failed to maintain its burden of showing due diligence in the procurement of the appearance of the absent witness, Oscar Fallin, and, therefore, his prior recorded testimony should not have been admitted. The judgment of the circuit court is reversed and the cause remanded for a new trial.\nJudgment reversed and cause remanded.\nGOLDBERG and SIMON, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE EGAN" } ], "attorneys": [ "Miller & Pomper, of Chicago (Dale W. Breeder, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Donald M. Devlin, and Frances T. Norek, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Jerome Payne, Defendant-Appellant.\n(No. 58925;\nFirst District (1st Division)\nJuly 7, 1975.\nMiller & Pomper, of Chicago (Dale W. Breeder, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Donald M. Devlin, and Frances T. Norek, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0624-01", "first_page_order": 650, "last_page_order": 657 }