{ "id": 3118654, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENNY E. PHILLIPS, Defendant-Appellant", "name_abbreviation": "People v. Phillips", "decision_date": "1981-05-04", "docket_number": "No. 79-1470", "first_page": "1013", "last_page": "1026", "citations": [ { "type": "official", "cite": "95 Ill. App. 3d 1013" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "447 U.S. 231", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183056 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/447/0231-01" ] }, { "cite": "398 N.E.2d 1132", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 869", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5606928 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0869-01" ] }, { "cite": "244 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853933 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0401-01" ] }, { "cite": "369 N.E.2d 260", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 109", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3399016 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0109-01" ] }, { "cite": "95 N.E.2d 477", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "407 Ill. 417", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2638820 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill/407/0417-01" ] }, { "cite": "391 N.E.2d 366", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "83 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474009 ], "weight": 2, "pin_cites": [ { "page": "549-50" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0545-01" ] }, { "cite": "319 N.E.2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "59 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959768 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/59/0158-01" ] }, { "cite": "292 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill. 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App. 3d 429", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2814979 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0429-01" ] }, { "cite": "192 N.E.2d 835", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "28 Ill. 2d 396", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363878 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/28/0396-01" ] }, { "cite": "365 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. App. 3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5639676 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0120-01" ] }, { "cite": "379 N.E.2d 863", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "78 Ill. 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App. 3d", "case_ids": [ 2713997 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0808-01" ] }, { "cite": "394 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1976, "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3277143 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "904" }, { "page": "905-06" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0901-01" ] }, { "cite": "406 N.E.2d 135", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1979, "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3202500 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/1017-01" ] }, { "cite": "398 N.E.2d 1054", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 1046", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5610498 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/1046-01" ] }, { "cite": "400 N.E.2d 511", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 535", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3231394 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0535-01" ] }, { "cite": "139 N.E.2d 286", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "10 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2724228 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/10/0074-01" ] }, { "cite": "182 N.E.2d 700", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. 2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5352878 ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0032-01" ] }, { "cite": "398 N.E.2d 351", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 230", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5610367 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0230-01" ] }, { "cite": "406 N.E.2d 891", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3193029 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0304-01" ] }, { "cite": "280 N.E.2d 708", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1980, "opinion_index": 0 }, { "cite": "51 Ill. 2d 50", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392468 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/51/0050-01" ] }, { "cite": "378 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "61 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3315492 ], "year": 1978, "pin_cites": [ { "page": "241" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/67/0236-01" ] }, { "cite": "185 N.E.2d 676", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "25 Ill. 2d 568", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5352623 ], "year": 1978, "pin_cites": [ { "page": "572" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/25/0568-01" ] }, { "cite": "193 N.E.2d 841", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 1 }, { "cite": "29 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2822307 ], "year": 1962, "pin_cites": [ { "page": "130" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/29/0127-01" ] }, { "cite": "284 N.E.2d 640", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 1 }, { "cite": "52 Ill. 2d 130", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393764 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "139" }, { "page": "139" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/52/0130-01" ] } ], "analysis": { "cardinality": 1301, "char_count": 34536, "ocr_confidence": 0.898, "pagerank": { "raw": 3.2080708919624467e-07, "percentile": 0.866300120200058 }, "sha256": "fc4be0307b0c1a37ea2b54f5d4943b4428298d51dfdd53a91e6853d35b66da8a", "simhash": "1:3004795e775d0dc6", "word_count": 5873 }, "last_updated": "2023-07-14T16:14:33.414377+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. BENNY E. PHILLIPS, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE CAMPBELL\ndelivered the opinion of the court:\nBenny Earl Phillips brings this appeal after a jury trial where he was convicted of one count of attempt murder (Ill. Rev. Stat. 1977, ch. 38, par. 8 \u2014 4), four counts of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, pars. 12 \u2014 4(a), (b)(1)), and one count of armed violence based on the underlying offense of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 33A \u2014 2). He urges the following issues on appeal: (1) whether the State proved beyond a reasonable doubt that he was not acting in defense of another when he shot the complaining witness; (2) whether his sixth amendment right to confrontation and fifth amendment right to due process were violated by the trial court\u2019s restriction of the complaining witness\u2019 cross-examination; (3) whether the defendant was denied his fifth amendment right to remain silent and his fifth amendment right to due process where the State cross-examined him and later commented during closing argument that he failed to notify anyone prior to his arrest that he had shot the complaining witness in defense of another; (4) whether the defendant was convicted of multiple offenses arising out of the same single act; and (5) whether the defendant\u2019s sentences should be reduced because the trial court failed to duly consider the factors in mitigation.\nWe reverse and remand for a new trial.\nThe defendant\u2019s convictions arose out of a shooting incident which took place on May 17, 1978, whereby Chicago Police Officer Jerry Stanley was seriously injured. Prior to trial the State filed two motions in limine. The first motion sought to preclude the defense from presenting any evidence of Stanley\u2019s blood alcohol content at the time of the shooting and the effect such alcohol content had on Stanley. This motion was denied. The second motion sought to preclude the defense from using information from Stanley\u2019s Chicago Police Department Internal Affairs Department file which revealed that from October of 1968 to the incident Stanley had been suspended 15 times including two instances, one in October 1968 and the other in February 1974, where Stanley improperly displayed his weapon and then filed a false report. Defense counsel argued that this evidence was admissible because it showed the complaining witness\u2019 prior bad acts. The trial court granted the motion in limine ruling that the matters contained in the file were collateral.\nAt the trial the State presented three witnesses in its case in chief. Officer Stanley testified that on May 17, 1978, he was on his annual furlough. He testified that on that afternoon he ate something about 12:30 p.m. and then proceeded to the Catesia Lounge where he played pinball and drank Old Fitzgerald bourbon with his cousin and brother-in-law. He stated that from approximately 1 p.m. to 4 p.m. he had four drinks. At about 4 p.m. he took his brother-in-law home, stopped by his mother\u2019s house, and then dropped his cousin back at the lounge. He then proceeded home by way of South May Street. On May Street, which is a one-way southbound street, he encountered a car blocking the street. He testified that he waited five or six minutes in his car and then asked a man, later identified as James Phillips, to move the car. He stated that he needed to enter the alley because he lived nearby. The man responded, \u201cm-f-, if you want to get by you either back out the street or drive through your car.\u201d Stanley testified that at this point he told James that he would get the car towed. He walked to a house across the street where three people were seated outside and asked them to phone the police but they refused. As he exited through the front gate of this house, he noticed that the car blocking his way had not been moved and that James was advancing towards him with a tire iron held over his head. Stanley pulled his concealed gun and ordered the man to drop the tire iron. The man complied and Stanley began walking towards him with his gun still pointed at the man. The man retreated as Stanley approached him. When Stanley was within five to 10 feet of the man and still holding the gun on him, he was shot for the first time. The shot came from behind and struck him in the right eye. Stanley first identified himself as a police officer after he fell. After he made this disclosure, Stanley stated that he heard someone say, \u201cHe is a copper, kill him\u201d and that this was when he was shot a second time. This shot struck him in the right front shoulder. According to Stanley\u2019s testimony, there was approximately a 10- to 15-second interval between the first shot and the second shot. After this shot he heard at least two and maybe three additional shots but he was not hit again.\nPolice Officer Maurice McCaster testified that on May 17, 1978, he responded to a call concerning a man being shot on South May Street and when he arrived at the scene discovered that the victim was a police officer. He found Officer Stanley lying on the ground in the middle of the street and a car with its motor running parked in the middle of the street which was later determined to be Stanley\u2019s car. McCaster recovered Stanley\u2019s weapon and found that there were no spent cartridges.\nThe State also called Kevin Tacker as a witness. Tacker testified that on May 17, 1978, he and his neighbor James Phillips were attempting to recharge his car battery by using jumper cables with James\u2019 car. While they were working on his car, Tacker stated that a man pulled up behind James\u2019 car which was double parked next to his so they could run the jumper cables between the cars. The man asked James whether he could move his car because it was blocking his way. Tacker identified this man as the complaining witness, Jerry Stanley. Tacker stated that James asked Stanley to wait a minute because they were trying to get the car started. Stanley waited for an unspecified period of time and then again asked if the car could be moved. At this point, according to Tacker, the two men exchanged words and curses. Shortly afterwards, James\u2019 car was moved from the middle of the street. Tacker next noticed Stanley on the other side of the street. He then heard someone say, \u201cWell, he\u2019s got a gun.\u201d He looked up and observed Stanley at his car waving his pistol at James who was standing beside Tacker\u2019s car holding a tire iron. According to Tacker, as Stanley approached James he dropped the tire iron. James began backing up to avoid being struck by Stanley\u2019s gun. At this point Benny Phillips approached Stanley from behind and fired two consecutive shots at him.\nAfter Tacker\u2019s testimony, there was a stipulation as to the extent of Stanley\u2019s eye injury. According to stipulation, Stanley lost at least partial use of his eye and suffered at least some permanent damage. At this point the State rested.\nThe defense called James Phillips to the stand. He testified that he owned a home at 8621 South May and had been employed by International Paper Company for eight years. He testified that on May 17,1978, after he returned home from work he helped Kevin Tacker try to start his car. While he was attaching starter cables to his and Tacker\u2019s car, Stanley drove up behind his car and said he wanted to get by. James testified that he asked Stanley to wait a few minutes because they were just about done but Stanley said \u201cm_f_, do you want me to have this car towed?\u201d At this point James was unaware that Stanley was a police officer. After this conversation, Stanley walked to the east side of May Street and James removed the jumper cables from his car and had his brother Benny Earl Phillips, the defendant herein, move the car so that it would be out of the way. Shortly thereafter, Stanley returned from the other side of the street and continued to threaten to have James\u2019 car towed. At this time James was standing at the front of Tacker\u2019s car. Stanley returned to his car and James picked up his tools and laid them on top of Tacker\u2019s car. According to James, while Stanley was at his car he pulled his gun and began waving it in James\u2019 direction. He then came over to where James was standing and began hitting him with the pistol and telling him that he was going to whip him. James stated that he backed away from Stanley and then turned and ran. At this point he heard two shots. No shots were fired after these shots. He did not see who fired these two shots, although he did see his brother walking down the street after the shooting. James further testified that after the shooting he approached Stanley lying on the ground and only then did Stanley identify himself as a police officer. James stated that in his opinion Stanley must have been intoxicated because he was not walking right and was speaking loudly and using foul language.\nTwo additional defense occurrence witnesses who testified were Robert Lee and Curtis Johnson, who were on Lee\u2019s front porch watching the work progress on Tacker\u2019s car on the afternoon of May 17,1978. Both observed Stanley drive up and a conversation ensue between him and James Phillips who wgs helping Tacker with his car. Both saw Stanley cross the street to talk with someone and then return to his car. Additionally, both testified that by the time Stanley returned to his car James\u2019 car had been moved down the street. Despite this fact, both men saw Stanley produce a gun from his car and start toward James saying that he was going to kick his m_f_a__Both men heard shots fired but neither saw who had fired them because when they observed Stanley\u2019s drawn gun they gathered several children into Lee\u2019s house. Both stated they heard only two shots and that they were consecutive. Lee stated that Stanley staggered and that in his opinion he was under the influence of alcohol.\nCertain of Johnson\u2019s testimony was attacked as inconsistent with a statement made to an Assistant State\u2019s Attorney on the day of the shooting. In the statement Johnson had said that he was in the house when the second shot was fired and that the shots were not simultaneous. Johnson did not recall making the earlier inconsistent statement.\nAlso testifying for the defense was Zella Ross who lived directly across the street from Mr. Lee. She was on her back porch on May 17, 1978, at approximately 4 p.m. when she heard what she thought were two firecrackers exploding. The sequence of the sounds was bang-bang. She later heard about the shooting.\nBenny Phillips took the stand in his own defense. His testimony closely parallelled that of the other defense witnesses. On May 17, 1978, he had been sitting watching his brother and Tacker try to get Tacker\u2019s car started. He observed the argument that ensued between his brother and Stanley after Stanley pulled up behind his brother\u2019s double parked car and walked down to Lee\u2019s house to see what the argument was about. He testified that he moved his brother\u2019s car out of the middle of the street after Tacker\u2019s battery was recharged. When he returned from moving the car he observed Stanley walk over to his car, pull a gun on his brother and then threaten to kick his m_f_a__At this point he ran home to get a gun. His home was three houses south of the Lee home on the east side of the street. He got the gun because he was afraid that Stanley was going to shoot his brother.\nWhen he returned to the scene, he saw Stanley pistol whipping or waving his gun at his brother. James had nothing in his hands at this time and was trying to back away from Stanley. The defendant testified that he fired two consecutive shots at Stanley with a .38 revolver because he thought Stanley was going to shoot his brother. He further testified that it was only after the second shot that Stanley identified himself as a police officer. The defendant stated that he left the scene after finding out that the man he had shot was a police officer, but watched the police come from the end of the block. He subsequently went home, changed his clothes and then went to a Taco house for a \u201cpop.\u201d He was arrested at his home later that evening.\nThe parties stipulated that a blood sample was taken from Stanley at 4:59 p.m. on May 17, 1978, and that it revealed a blood alcohol concentration of .247. Subsequent to this stipulation, the defense called Dr. John J. Spikes, chief toxicologist for the Illinois Department of Public Health, to testify to the effects of alcohol on the human body. He testified that if given the blood alcohol concentration of an individual he could testify to a reasonable degree of certainty as to the intoxication or sobriety level of that individual. He outlined the three states of inebriation. At a blood alcohol level of .05 to .1 a person loses inhibitions and the ability to make good decisions. Then at a blood alcohol level of .1 to .2 the individual loses his coordination and ability to walk and speak normally which usually results in a staggered walk and slurred speech. At a level of .335 an individual becomes comatose.\nDr. Spikes was given a hypothetical based on what condition a man of Stanley\u2019s weight, height, and age, who had eaten prior to starting to drink a particular bourbon would be in based on a blood alcohol level of .247. Spikes testified that he would have lost his inhibitions, lost his ability to make good judgments, and would have staggered and had slurred speech. Moreover, he noted that this hypothetical man could have had temporary amnesia at that level. He believed that it would have taken 15 drinks of normal strength to reach this blood alcohol level rather than the three or four drinks which Stanley testified that he consumed. Dr. Spikes believed that this man could have definitely been under the influence of alcohol at the time of the shooting but did admit on cross-examination that alcohol has a different effect on every person depending upon his emotional, mental, and physical state. He also noted that some people develop a tolerance to alcohol and that fear can affect a person\u2019s performance.\nAfter hearing the evidence the jury returned verdicts of guilty on all counts. The trial court denied the defendant\u2019s oral motion for judgment notwithstanding the verdict and entered judgment on the verdict. The trial court also denied the defendant\u2019s written motion for a new trial and after hearing evidence in aggravation and mitigation sentenced the defendant to concurrent sentences of 15 years for the attempt murder and armed violence and 5 years for each of the four counts of aggravated battery.\nWe find persuasive the defendant\u2019s argument that the trial court erred in granting the State\u2019s motion in limine restricting his right to cross-examine Officer Stanley as to his 15 prior suspensions from the Chicago Police Department. Initially, we note that prior to the trial of this matter defense counsel opposed the State\u2019s motion in limine because two principal issues at trial were whether Stanley was justified in showing his weapon and whether or not his account of the shooting was true. Defense counsel argued that his intended impeachment of Stanley would be based upon Stanley\u2019s prior bad acts. A witness\u2019 character cannot generally be impeached by prior misconduct but evidence of prior misconduct may be used to impeach a witness if it shows his bias, interest or motive to testify falsely. (See People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708; People v. Siler (1980), 85 Ill. App. 3d 304, 406 N.E.2d 891; People v. Cepolski (1979), 79 Ill. App. 3d 230, 398 N.E.2d 351.) While the defense counsel\u2019s proposed line of inquiry was not made explicitly apparent from the record, defendant in his brief on appeal argues that Stanley\u2019s prior misconduct and his suspensions raise the possibility that his testimony was influenced by bias, interest, or motive to testify falsely. In that the State has not argued that the defendant has deviated from his position-at trial and in that important rights are involved, we will consider the defendant\u2019s argument as to whether the trial court unduly restricted his cross-examination as to Stanley\u2019s suspensions. See People v. Cepolski.\nIt is well established that the widest latitude allowable should be given to a defendant on cross-examination (People v. Barr; People v. Naujokas (1962), 25 Ill. 2d 32, 182 N.E.2d 700; People v. Siler), but that this latitude rests in the sound discretion of the trial court and will only be disturbed on a finding of clear abuse of discretion resulting in manifest prejudice. (People v. Halteman (1956), 10 Ill. 2d 74, 139 N.E.2d 286; People v. Bristow (1980), 80 Ill. App. 3d 535, 400 N.E.2d 511; People v. Lenard (1979), 79 Ill. App. 3d 1046, 398 N.E.2d 1054.) Showing bias, interest or motive to testify is an accepted method of impeachment. (People v. Richmond (1980), 84 Ill. App. 3d 1017, 406 N.E.2d 135; People v. Thompson (1979), 75 Ill. App. 3d 901, 394 N.E.2d 422.) Cross-examination for this type of impeachment is a matter of right subject only to the trial court\u2019s broad discretion to preclude repetitive or unduly harassing interrogation assuming a proper subject matter. People v. Lenard; People v. Thompson; People v. Baptiste (1976), 37 Ill. App. 3d 808, 347 N.E.2d 92; People v. Pickett (1975), 34 Ill. App. 3d 590, 340 N.E.2d 259.\nMoreover, where the defendant\u2019s theory is that the prosecution\u2019s witnesses are unbelievable, it is error not to allow cross-examination as to the witnesses\u2019 bias, interest or motive to testify. (People v. Lenard; People v. Lake (1978), 61 Ill. App. 3d 428, 378 N.E.2d 364.) The trial court has no discretionary power to deny the defendant the right to cross-examine the witness to show interest, bias, or motive. (People v. Thompson; People v. Kellas (1979), 72 Ill. App. 3d 445, 389 N.E.2d 1382.) As was noted in Thompson,\n\u201cA trial court cannot preclude the defendant from showing the interest, bias or motive of a witness, and if it does so by its ruling, it cannot be sustained on the basis of an argument that the ruling was within the trial court\u2019s discretion. [Citations.]\u201d (75 Ill. App. 3d 901, 904.)\nEvidence of bias, interest or motive, however, must not be remote or uncertain because the evidence must potentially give rise to the inference that the witness has something to gain or lose by his testimony. People v. Bristow. See People v. Eddington (1979), 77 Ill. 2d 41, 394 N.E.2d 1185, cert. denied (1980), 445 U.S. 944, 63 L. Ed. 2d 777, 100 S. Ct. 1340; People v. Bradford (1979), 78 Ill. App. 3d 869, 379 N.E.2d 863; People v. Mitchell (1977), 50 Ill. App. 3d 120, 365 N.E.2d 185.\nThe State argues that the trial court acted in its discretion in denying the defendant the opportunity to cross-examine Stanley as to his suspensions because this evidence was remote and entirely unrelated to the defendant and, therefore, could not have conceivably affected Stanley\u2019s bias, interest or motive to testify falsely. Moreover, the State terms obscure and tenuous the defendant\u2019s suggestion that Stanley might have been motivated to testify falsely based on his desire to avoid any disciplinary action or to lose any medical coverage or compensation while on medical leave if it were found that he had abused the power of his office by improperly displaying his weapon. We do not agree.\nInitially, we respond to the State\u2019s remoteness argument by noting that the fact that Stanley\u2019s prior suspensions arose out of incidents which did not involve the defendant is not determinative. The issue of the propriety of a trial court\u2019s ruling regarding the scope of cross-examination of a witness for bias, interest and motive has been raised in contexts where the defendant was involved. (See People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708 (co-defendant\u2019s charges dropped in consideration for testifying); People v. Lenard (1979), 79 Ill. App. 3d 1046, 398 N.E.2d 1054 (police officer who testified for State had been involved in beating defendant after his arrest).) However, the issue has also been raised where the evidence of bias, interest or motive did not relate to any activity between the witness and the defendant. (See People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835 (narcotics inspectors were defendants in other criminal case and had been recently suspended from the police force); People v. Siler (1980), 85 Ill. App. 3d 304, 406 N.E.2d 891 (witness facing extradition because of case pending in foreign jurisdiction); People v. Richmond (1980), 84 Ill. App. 3d 1017, 406 N.E.2d 135 (witness had pending bond forfeiture warrants).) The issue is, therefore, not whether the witness\u2019 contact with the defendant gives rise to a question of the witness\u2019 credibility, but rather, whether the witness\u2019 bias, interest or motive to testify call into question his credibility. People v. Richmond; People v. Thompson (1979), 75 Ill. App. 3d 901, 394 N.E.2d 422.\nNor do we find that the evidence of Stanley\u2019s past suspensions was remote. If Stanley, as his Internal Affairs file apparently indicated, had been suspended from the police force on 15 prior occasions, he could have been motivated to testify falsely to avoid a further suspension, or worse, termination. Moreover, he could also have been motivated to testify falsely to insure the continuance of his medical coverage and compensation, no small matter where Stanley had no use of his left eye and uncertain use of his right eye. Such an inquiry was not collateral as the trial court indicated. (People v. Garrett (1976), 44 Ill. App. 3d 429, 358 N.E.2d 364.) In People v. Robinson (1977), 56 Ill. App. 3d 832, 371 N.E.2d 1170, the court held that it was error to preclude cross-examination of a police officer as to his suspension because it may have affected his testimony in that he might have testified in a certain way in order to avoid further disciplinary measures.\nThe instant case is distinguishable from People v. Hanks (1974), 17 Ill. App. 3d 633, 307 N.E.2d 638, cited by the State, where the trial court ruled that evidence that the key witness was fired from his job for theft was remote because law enforcement officials were unaware of the witness\u2019 theft and, therefore, could not have offered him leniency in exchange for his testimony. Nor was it likely that the witness\u2019 testimony was motivated by his fear that due to the theft he needed to take any suspicion from himself in that his testimony was consistent with his earlier statements made before he was fired. In the instant case, the Chicago Police Department was aware of Stanley\u2019s past suspensions, and therefore, his testimony in the instant case could very well have affected his status as a police officer.\nThe State points out that there was no evidence that Stanley was on suspension at the time of the trial or that his behavior was under review by any police agency. Additionally, the State notes that the defendant was not restricted in his cross-examination of Stanley of inquiring into other areas which might have showed his bias, interest or motive to testify including whether he was on suspension or under current review. While we believe that whether the complaining witness had been suspended or was under investigation would have been a valid area of inquiry to show bias, interest or motive (People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835; People v. Robinson (1977), 56 Ill. App. 3d 832, 371 N.E.2d 1170), we believe that the inquiry into the prior suspension was also a proper topic of impeachment. This was not made less important merely because there were other avenues of impeachment which the defendant could have explored. (People v. Baptiste (1976), 37 Ill. App. 3d 808, 347 N.E.2d 92.) The ruling of the trial court restricting cross-examination prevented the jury from hearing evidence which could have affected Stanley\u2019s credibility, and the defendant had the right to present this evidence under the theory that the State\u2019s witness was unbelievable. People v. Baptiste.\nThe State finally argues that it was readily apparent to the jurors that if Stanley\u2019s version of the shooting was not true, he could be subjected to disciplinary action and that, accordingly, the jury was aware of the very fact which the defendant now claims may have shown that the defendant was less than credible. We are not convinced that the inference of Stanley\u2019s possible motive to testify was clear to the jury. (See People v. Vagil (1973), 9 Ill. App. 3d 726, 292 N.E.2d 557.) Stanley\u2019s credibility as the key prosecution witness was of paramount importance in the instant case because the defendant testified that he acted in defense of. his brother in shooting Stanley. Therefore, even if the jury were aware of Stanley\u2019s possible bias, interest of motive to testify, it was for the jury to decide whether the past suspensions provided Stanley with a further motive to offer false testimony. People v. Mason; People v. Richmond (1980), 84 Ill. App. 3d 1017, 406 N.E.2d 135; People v. Baptiste.\nIn determining whether the trial court\u2019s restriction of cross-examination for bias, interest or motive is reversible error, courts look to whether the credibility of the witness in issue was crucial. If the witness\u2019 testimony was crucial, the restriction of cross-examination will have resulted in manifest prejudice to the defendant and consequently require reversal. People v. Galloway (1974), 59 Ill. 2d 158, 319 N.E.2d 498; People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708; People v. Lenard (1979), 79 Ill. App. 3d 1046, 398 N.E.2d 1054; People v. Garrett (1976), 44 Ill. App. 3d 429, 358 N.E.2d 364; People v. Vagil.\nIn the instant case, while the State did offer the testimony of another occurrence witness, that witness\u2019 testimony differed materially from Stanley\u2019s as to the number of shots fired and the interval between the shots, and as to whether James Phillips\u2019 car was moved prior to the shooting. More importantly, Tacker\u2019s testimony differed from that of Stanley as to whether James acted as the aggressor by advancing on Stanley with a tire iron raised over his head while Stanley was leaving a house where he had tried to get someone to call the police to have the car towed. Tacker testified that he saw James standing by Tacker\u2019s car with the tire iron in his hands that he had been using to work on Tacker\u2019s automobile. At this same time he saw Stanley standing by his own car waving his gun at James and shouting. He then saw Stanley come over to where James was standing and start waving his gun in James\u2019 face although James had dropped the tire iron and was trying to avoid being hit by Stanley\u2019s pistol at this time. It was then that Stanley was shot by the defendant. This raises some doubt as to whether Stanley pulled his gun without any physical threat or provocation from James, whether Stanley was the aggressor in the shooting incident, and whether the defendant, in fact, acted in defense of his brother in shooting Stanley.\nMoreover, the testimony of the four defense witnesses corroborated the defendant\u2019s testimony as to the number and time sequence of the shots fired. The three defense occurrence witnesses also generally corroborated the defendant\u2019s testimony. Accordingly, the credibility of Stanley\u2019s testimony was indeed crucial. We believe that the limitation of the defendant\u2019s cross-examination of Stanley did act to his prejudice and requires us to reverse and remand this cause for a new trial.\nWe believe that this finding is consistent with the caution urged by the Illinois Supreme Court in regard to the use of motions in limine. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545.) The court noted that,\n\u201cAn in limine motion permits a party to obtain an order before trial excluding inadmissible evidence and prohibiting interrogation concerning such evidence without the necessity of having the questions asked and objections thereto made in front of the jury. Thus, the moving party will be protected from whatever prejudicial impact the mere asking of the questions and the making of the objections may have upon a jury. [Citation.] The ability to restrict interrogation makes the in limine order a powerful weapon. This power, however, also makes it a potentially dangerous one. Before granting a motion in limine, courts must be certain that such action will not unduly restrict the opposing party\u2019s presentation of its case.\u201d 83 Ill. 2d 545, 549-50.\nIn light of People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366, we must address the defendant\u2019s reasonable doubt argument. From the evidence presented, we believe the jury could have properly found the defendant guilty. Although there were material contradictions between the State\u2019s witnesses, the jury could have believed that Tacker was biased because he was a neighbor of the defendant and therefore lacked credibility (People v. Simmons (1950), 407 Ill. 417, 95 N.E.2d 477; People v. Beasley (1977), 54 Ill. App. 3d 109, 369 N.E.2d 260), while Stanley was a credible witness. It is well recognized that the testimony of a single witness is sufficient to sustain a conviction. (People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182; People v. Flores (1979), 79 Ill. App. 3d 869, 398 N.E.2d 1132.) We make this ruling with the same caution exhibited in People v. Thompson (1979), 75 Ill. App. 3d 901, 905-06, 394 N.E.2d 422, where the court noted:\n\u201c \u00b0 \u00b0 * we make no finding as to defendant\u2019s guilt that would be binding on the court on retrial. Indeed, defendant is entitled to her presumption of innocence. Our consideration of the sufficiency of the evidence question comports with the supreme court\u2019s mandate in Taylor to protect defendant\u2019s constitutional right against double jeopardy.\u201d\nWe also find it necessary to comment on an issue which might be raised again in the defendant\u2019s second trial. The defendant has argued that testimony elicited on cross-examination concerning his pre-arrest silence denied him due process of law and violated his right to remain silent. On cross-examination the defendant was asked whether immediately following the shooting he contacted the police, his pastor or anyone in the community as to the fact that he had shot Stanley in defense of his brother. The defendant admitted that he had contacted no one during the short four-hour interval between the shooting and his arrest. During closing argument the prosecution emphasized this testimony and the fact that the defendant had not advanced the self-defense argument right after the shooting.\nThe United States Supreme Court recently addressed this issue in Jenkins v. Anderson (1980), 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124. The court found that this type of inquiry into a defendant\u2019s pre-arrest silence was violative of neither a defendant\u2019s due process rights nor his right to remain silent. However, the court specifically provided that any State could formulate its own rules determining the probativeness of such evidence and that, as such, it could find this type of inquiry impermissible. The defendant, without the benefit of authority, urges this court to find this inquiry impermissible. It is argued that the defendant\u2019s silence was not necessarily inconsistent with his testimony that he acted in defense of his brother because the defendant could have reasoned that because of Stanley\u2019s status as a police officer he would not receive a \u201cwarm welcome at the police station.\u201d It is also urged that the defendant\u2019s inexperience with the police and the criminal justice system caused him to be frightened after the shooting incident and that it was this fright and not his guilt which was evidenced by the defendant\u2019s pre-arrest silence. We find no reason to depart from the result reached in Jenkins. We believe that the trier of fact should determine the proper weight to be given the defendant\u2019s pre-arrest silence in light of his testimony of what transpired on the day of the shooting as well as the reasonable inferences which could be made from the circumstances.\nFor the foregoing reasons the judgment of the circuit court of Cook County is reversed and remanded for a new trial.\nReversed and remanded for a new trial.\nMcGLOON, J., concurs.", "type": "majority", "author": "Mr. PRESIDING JUSTICE CAMPBELL" }, { "text": "Mr. JUSTICE GOLDBERG,\nspecially concurring:\nI concur with the result reached by my esteemed colleagues. I concur also with the legal propositions upon which the result is based. However, I deem it necessary to add one cautionary point.\n* As shown by the authorities cited in the opinion, wide latitude should be permitted in cross-examination by defense counsel, and a demonstration of bias is a proper goal. However, in the instant case, this accepted standard should not be mistakenly applied to the substantive legal questions arising in connection with proof of self-defense.\nIt appears to me that self-defense depends in part not only upon the fact of aggression, but also upon the subjective element that the character and past conduct of the aggressor were known to the defendant. Where self-defense is an issue, the law permits proof of specific acts of violence and threats by the deceased. Prior conduct of the aggressor may properly be shown by a defendant as an element of self-defense provided that defendant was aware and had knowledge of these past events. (See People v. Stomhaugh (1972), 52 Ill. 2d 130, 139, 284 N.E.2d 640; People v. Davis (1963), 29 Ill. 2d 127, 130, 193 N.E.2d 841; People v. Adams (1962), 25 Ill. 2d 568, 572, 185 N.E.2d 676; People v. Carbajal (1978), 67 Ill. App. 3d 236, 241, 384 N.E.2d 824; and People v. Graves (1978), 61 Ill. App. 3d 732, 740, 378 N.E.2d 293.) The important matter here is \u201cto show the defendant\u2019s state of mind.\u201d Stomhaugh, 52 Ill. 2d 130, 139.\nIn the instant case, although proof of past conduct by Officer Stanley and his prior problems in connection with his status as a police officer were competent and material to show his possible bias as a witness against the defendant, this evidence was neither competent nor proper on the substantive issue of self-defense. Upon a retrial of the instant case, a determination should be made as to whether this problem should be the subject of a cautionary instruction to the jury.", "type": "concurrence", "author": "Mr. JUSTICE GOLDBERG," } ], "attorneys": [ "Michael J. Pelletier, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Marcia B. Orr and Richard F. Burke, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENNY E. PHILLIPS, Defendant-Appellant.\nFirst District (1st Division)\nNo. 79-1470\nOpinion filed May 4, 1981.\nGOLDBERG, J., specially concurring.\nMichael J. Pelletier, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Marcia B. Orr and Richard F. Burke, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1013-01", "first_page_order": 1035, "last_page_order": 1048 }