{
  "id": 3358389,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT DeFORD, Defendant-Appellant",
  "name_abbreviation": "People v. DeFord",
  "decision_date": "1978-05-17",
  "docket_number": "No. 77-81",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT DeFORD, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE STENGEL\ndelivered the opinion of the court:\nFollowing a jury trial in the Circuit Court of Fulton County, Robert DeFord was found guilty of burglary and sentenced to a term of three to 10 years in prison (Ill. Rev. Stat. 1975, ch. 38, par. 19 \u2014 1). The sole issue raised on review is whether the trial court erred by calling Rick DeFord, defendant\u2019s 16-year-old brother and accomplice, as a court\u2019s witness.\nThe Eagles Lodge in Canton, Illinois, was burglarized sometime in the early morning hours of December 1, 1976. A police officer investigating the burglary discovered two sets of footprints in the fresh snow near a broken-out glass door. One set was made by a square-toed boot or shoe and the other by a tennis shoe with a large \u201cC\u201d and a star on it. The footprints led from the lodge to a set of tire tracks on a road about 50 feet away. The officer followed the tire tracks down the road and into the driveway of a new home. Footprints leading from the tire tracks in the driveway to some nearby shrubs were followed, but nothing was found. The officer continued following the tire tracks back out of the driveway and to Route 78 where they turned toward Canton and could no longer be followed. Robert and Rick DeFord were arrested shortly thereafter in an all night diner in Canton. Robert was wearing a pair of boots with square toes and Rick wore a pair of Converse tennis shoes. Subsequently, it was determined that the home to which the tire tracks led was owned by defendant\u2019s father.\nAt a pretrial hearing the State moved to call Rick DeFord as a court\u2019s witness. The motion was granted over defendant\u2019s objection after representations were made that Rick DeFord was the sole eyewitness, had given previous statements and was defendant\u2019s brother. The State later prepared a motion seeking a grant of immunity from prosecution for Rick DeFord. At trial, after first establishing the facts of the burglary, tracking and arrest, the State asked the court to call defendant\u2019s brother as a court\u2019s witness. Defendant again objected, but the trial court, after granting the motion for immunity, designated Rick DeFord as a court\u2019s witness.\nRick testified that both he and the defendant entered the Eagles Lodge in the early morning hours of December 1,1976, after the defendant had broken out the glass in one of the doors. Rick stated that he stood watch until his brother passed him a canvas bag of money and then they drove to their father\u2019s new home and hid the bag under some trees. The witness confirmed the facts of the arrest as stated by the officers and testified that he was wearing tennis shoes and his brother was wearing square-toed boots during the burglary. Under examination by defense counsel the witness testified that immediately after being arrested he denied committing the burglary. He stated that he persisted in that denial until he came to the understanding that the State would \u201cgo easier\u201d on him if he would testify at his brother\u2019s trial. No witnesses were called by the defense and the jury returned a guilty verdict.\nOn appeal defendant contends there was an insufficient foundation laid for the calling of Rick DeFord as a court\u2019s witness. Defendant claims he was prejudiced because the State was allowed to elicit the witness\u2019 testimony by means of leading questions.\nIf the court finds a witness to be unwilling or hostile, the party calling him may examine the witness by use of cross-examination. (People v. Chitwood (4th Dist. 1976), 36 Ill. App. 3d 1017, 344 N.E.2d 611.) Whether a person should be called as a court\u2019s witness is a decision within the discretion of the trial court and that decision will not be disturbed on review absent an abuse of discretion. (People v. Robinson (3d Dist. 1977), 46 Ill. App. 3d 713, 361 N.E.2d 138.) However, the party asking the court to adopt the witness must lay a proper foundation. Such a foundation \u201cwould necessarily consist of the reasons why the party desiring the witness cannot vouch for his veracity, and showing that the testimony of the witness will relate to direct issues and is necessary to prevent a miscarriage of justice.\u201d (People v. Moriarty (1966), 33 Ill. 2d 606, 615, 213 N.E.2d 516.) Defendant DeFord concedes that his brother\u2019s testimony related to direct issues in the case and was of such importance that its absence could have resulted in a miscarriage of justice. Defendant contends that calling Rick DeFord as a court\u2019s witness was an abuse of the trial court\u2019s discretion because the reasons set forth by the State as justifying its reluctance to vouch for the witness\u2019 veracity were insufficient.\nThe courts of Illinois continue to expand the power of the trial judge to call a court\u2019s witness in cases where the formal rules might possibly cause a failure to bring the truth to the trier of the facts.\nWe find no abuse of discretion in this case. Important factors were before the trial court which supported the State\u2019s reluctance to vouch for the veracity of Rick DeFord. In the first place, the witness was defendant\u2019s brother. Courts have cited close personal friendship between the witness and the defendant as a reason for doubting a witness\u2019 veracity. (People v. Dennis (1970), 47 Ill. 2d 120, 265 N.E.2d 385.) Surely, a close family relationship between the witness and the defendant provides even more justification for the State to decline to vouch for the witness\u2019 veracity, and the fact that the witness in this case was also the defendant\u2019s accomplice is additional justification. Furthermore, the witness had already changed his story at least once. Immediately after being arrested Rick DeFord denied committing the burglary. The witness later admitted involvement in the crime and gave a statement to the police, but the inconsistency of the witness\u2019 story could reasonably lead the State to believe the witness was telling less than the whole truth. Indeed, Rick DeFord\u2019s testimony at trial was inconsistent with his statement of December 3, 1976. In the earlier statement the witness admitted being present during the burglary, but denied entering the building. At trial the witness testified that both he and the defendant entered the burglarized lodge. The range of the witness\u2019 story concerning his involvement in the burglary, from complete denial to being present at the scene but not involved to actual commission of the crime, clearly supports the State\u2019s reluctance to vouch for Rick DeFord\u2019s veracity.\nDefendant, however, places great emphasis on the grant of immunity given to Rick DeFord, arguing that it is logically inconsistent for the State to refuse to vouch for the veracity of a witness who has been granted immunity from prosecution. We do not agree. The power awarded to the State by the legislature to move the court for a grant of immunity for a witness is a strategic tool which may be employed by the State for various purposes. (Ill. Rev. Stat. 1975, ch. 38, par. 106 \u2014 1 et seq.) One such purpose is to allow the State to compel a person to testify who otherwise could not be forced to testify because of his Fifth Amendment right against self-incrimination. (People v. Rockola (1931), 346 Ill. 27, 178 N.E. 384.) Rick DeFord could not have been compelled to testify in the instant case absent the grant of immunity to him. In such situations the State, of course, hopes that the witness granted immunity will testify truthfully, and the threat of perjury or contempt charges adds sanction to that hope. (Ill. Rev. Stat. 1975, ch. 38, par. 106 \u2014 3.) But, a grant of immunity is surely no guarantee that a witness will testify truthfully (People v. Jarrett (1st Dist. 1965), 57 Ill. App. 2d 169, 206 N.E.2d 835), and we do not believe the State should be required to vouch for the veracity of a witness granted immunity, particularly where there are factors present reasonably indicating that the witness may be reluctant to testify truthfully. We have already noted that the witness in this case had a close family relationship with the defendant, was defendant\u2019s accomplice, and had given two different stories to the police before trial.\nGiven these circumstances, we cannot conclude that the trial court abused its discretion by calling Rick DeFord as a court\u2019s witness. The judgment of the Circuit Court of Fulton County is affirmed.\nAffirmed.\nALLOY and STOUDER, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE STENGEL"
      }
    ],
    "attorneys": [
      "Robert Agostinelli and Susan M. Solovy, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "- Thomas J. Homer, State\u2019s Attorney, of Lewistown (James E. Hinterlong and Joseph A. Mueller, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT DeFORD, Defendant-Appellant.\nThird District\nNo. 77-81\nOpinion filed May 17, 1978.\nRobert Agostinelli and Susan M. Solovy, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\n- Thomas J. Homer, State\u2019s Attorney, of Lewistown (James E. Hinterlong and Joseph A. Mueller, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
  },
  "file_name": "0942-01",
  "first_page_order": 964,
  "last_page_order": 967
}