People v. Tabb

FOURTH DIVISION
FILED: June 14, 2007

No. 1-05-1640

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County, Illinois.
Plaintiff-Appellee, )
)
v. ) No. 03 CR 24690
)
TRIANDUS TABB, ) Honorable James Egan,
) Judge Presiding.
Defendant-Appellant. )

JUSTICE MURPHY delivered the opinion of the court:

Following a trial by jury, defendant, Triandus Tabb, was convicted of attempted first

degree murder, aggravated battery with a firearm, and aggravated vehicular hijacking. The trial

court merged the first two convictions and defendant was sentenced to 12 years' imprisonment for

attempted first degree murder and 4 years' imprisonment for aggravated vehicular hijacking. The

trial court found that defendant had caused great bodily harm to the victim and ordered the

sentences be served consecutively pursuant to section 5-8-4(a) of the Unified Code of

Corrections. 730 ILCS 5/5-8-4(a) (West 2004).

On appeal, defendant contends that: (1) the trial court erred when it granted the State's

motion in limine, denying him the opportunity to use witness Norman Brown's juvenile

delinquency adjudication record to impeach the testimony of Brown and Eyvonne Ford; (2) the

trial court erred when it denied his motion for a directed verdict; (3) the State failed to prove him
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guilty beyond a reasonable doubt because the State's witnesses were not credible and the

identification of defendant as the offender was unreliable; (4) the trial court violated the one-act,

one-crime doctrine when it sentenced him for both aggravated battery with a firearm and

attempted first degree murder convictions; and (5) the trial court violated the ruling in Apprendi

v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it, rather than the

jury, made a factual finding of "severe bodily injury" and imposed consecutive sentences.

I. BACKGROUND

On September 6, 2003, at approximately 1:20 p.m, Salvador Gomez (the victim) was in

his car and stopped at a red light at the intersection of West 5lst Street and South Ashland

Avenue in Chicago, Illinois. While stopped, the victim was attacked and shot at by an armed

assailant who had threatened the victim and demanded he get out of his vehicle. Defendant, who

lived in the vicinity of the crime at the Daniel J. Nellum Group Home (the group home), was later

arrested for the crime.

The Motion in Limine

Before defendant’s trial began, the State presented an oral motion in limine to bar

testimony regarding Norman Brown's prior juvenile delinquency adjudications on the grounds that

the adjudications were irrelevant and highly prejudicial. Defense counsel argued that evidence

regarding Brown's prior finding of delinquency for possession of controlled substances was proper

for the purposes of impeachment. After argument on the issue, the trial court granted the State's

motion on the ground that the prejudicial effect of the evidence outweighed its probative value.

The Jury Trial

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The victim testified that on September 6, 2003, at about 1:20 p.m., he was driving his

black GMC Yukon Denali sports utility vehicle on West 51st Street and South Ashland Avenue in

Chicago, Illinois. According to the victim, while he was stopped at a red light, a tall black man

wearing a white shirt and a white baseball jersey appeared at his open driver's-side window. The

victim testified that the man put a gun to his left temple and told him to "get out of the fucking

truck, mother fucker." The victim refused to do so and tried to pull the gun down, away from his

head. The victim testified that he kept his eyes on the gun and the offender's face. The victim

testified that he struggled with the man, but the assailant stepped back and fired into the truck,

shooting him twice in the stomach and once in the left arm.

The shooter ran away and the victim drove a few blocks west to the intersection of West

51st Street and South Paulina Avenue and called 911. The victim testified that he could not really

say how long his encounter with the assailant lasted, but finally explained it "could be five

seconds, could be ten seconds, I don't know." The victim admitted that during the encounter he

was scared for his life. On October 25, 2003, the victim went to the police station to view two

lineups. The victim stated that he did not identify anyone in the first lineup, but that he identified

defendant as the offender in the second lineup.

Norman Brown

Norman Brown testified that, at the time of the shooting, he and defendant were residents

of the group home, located at 1458 West 51st Street, which is overseen by the Illinois

Department of Children and Family Services (DCFS). Brown testified that defendant had been

under the care of DCFS since the age of four and was a member of the Blackstone street gang.

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On the day of the shooting, only three boys resided at the group home, defendant, Brown, and

Isaac Prittard.

Brown explained that the group home was run by child care technicians who noted in a

log book the comings and goings of the boys. Brown testified that the boys were free to leave the

group home whenever they wanted before a 10:30 p.m. curfew. However, if one of the boys

wanted to leave after curfew, he did not have to "sneak" out, but could simply walk past the child

care worker on duty and out the back door. Brown testified that the child care worker would not

stop the boy from leaving, but would note it in the logbook, and then the child care worker would

file a report with the police. The police would then look for the boy.

Brown testified that on the day in question he, defendant, and Prittard left the group home

to get some cigarettes. As the three were walking back to the group home, they saw the victim in

his black Yukon Denali. Brown testified that when the victim stopped at a red light, defendant

pulled out a chrome pistol, shot at the victim three or four times, and ran away. Brown stated

that after the shooting, he ran back to the group home and did not recall seeing defendant again

until the next day.

During cross-examination, Brown confirmed that during a conversation with defendant's

counsel the day before trial, he said he did not know whether defendant had committed the crime

or not. In addition, Brown testified that he had a daily marijuana habit both at the time of the

offense and at the time of trial. Defense counsel questioned Brown extensively concerning his

drug use and whether he sold drugs to Eyvonne Ford, another State witness. The State objected

to this line of questioning.

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The trial court held a sidebar to argue the issue. The State argued that this line of

questioning was another attempt by the defense to introduce Brown's juvenile delinquency

adjudications, which were already addressed in the motion in limine. The State argued that if the

defense wanted to pursue this line of questioning, it would need an offer of proof. The trial court

found that because defense counsel's information that Brown sold drugs to Eyvonne Ford and that

she smoked crack was based solely on defense counsel's conversation with his client, and because

defense counsel was not offering to put his client on the stand to lay the foundation, that he could

not go any further with this line of questioning.

Eyvonne Ford

Eyvonne Ford, a 41-year-old woman, testified that she lived near the group home and that

she knew defendant, Brown, and Prittard because they would "sneak" out of the group home late

at night and go to her house to hang out with her 19-year-old son. Ford testified that she was so

close to defendant and Brown that they called her "Mom." Ford testified that she allowed the

boys to come into her home until a man from the group home asked her to stop.

Ford testified that on the day in question, she was walking on South Ashland Avenue

toward West 51st Street when she was approached by defendant, Brown, and Prittard. Ford

testified that defendant told her that he had just shot a "Scipe," which Ford understood to mean a

member of the street gang Satan Disciples. Ford testified that she knew that defendant, Brown,

and Prittard were members of the Blackstones street gang and that at the time of the shooting the

Blackstones were at war with the Satan Disciples. Ford testified that, at first, she doubted what

defendant told her because she knew him to be a liar.

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However, Ford testified that she spoke with her sister after speaking with defendant.

When she told her sister what defendant had said, her sister stated that she had seen a man lying

on the ground who had been shot near West 51st Street and South Paulina Avenue. Ford testified

that she and her sister went to the scene of the crime and spoke with a police officer who directed

her to the 9th District. Ford testified that she called the 9th District and told them that she had

information concerning the shooting.

Detective Will Svilar

Detective Will Svilar testified that he was assigned to investigate the shooting. Svilar

testified that he was informed that Ford had contacted the 9th District with information pertaining

to the shooting. During an interview with Ford, she gave Svilar two names and a nickname:

Norman Brown, Isaac Prittard, and defendant's nickname "Travo." Svilar testified that on

October 25, 2003, he went to the group home and placed Brown and Prittard under arrest. He

brought them to Area 1 and arranged for them to take part in a lineup.

Svilar testified that he was with the victim when he viewed the first lineup. The lineup

contained Brown, Prittard, and four other people. All six individuals stepped forward individually

and said "get out of the truck mother fucker." Svilar testified that at the conclusion of this lineup,

the victim was unable to identify anyone. Defendant subsequently entered the police station that

evening looking for Brown and Prittard. Svilar took defendant into custody and called the victim

back to the police station to view a second lineup, this time with defendant in the lineup. The

victim positively identified defendant as being the same man who had shot him.

The Motion for Directed Finding

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The State rested and defendant's counsel moved for a directed finding, arguing that the

State failed to show the requisite intent for a conviction of attempted first degree murder.

Defendant argued that the evidence presented by the State, including the location of the victim's

wounds, showed only an accidental shooting during a struggle for the gun. In addition, the

defense argued that the State failed to meet the elements for the charge of attempted vehicular

hijacking because the evidence only showed that the assailant told the victim to get out of his

truck. The defense argued that there was no evidence to show that the assailant intended to take

the victim’s truck after he got out. The defense also argued that the assailant did not explicitly

threaten physical harm. The defense argued that as a result, the State failed to establish the

elements of either attempted murder or attempted vehicular hijacking and a directed finding

should be entered with regard to both charges.

The State responded that it had presented sufficient evidence on the charge of attempted

first degree murder. With regard to the attempted vehicular hijacking charge, the State argued

that "[p]ointing a gun at a driver of a car and saying get out of car***. That alone is an attempt

to take a car from somebody." The trial judge denied defendant's motion on the grounds that the

State had presented enough evidence to establish the elements of both attempted first degree

murder and attempted aggravated vehicular hijacking.

Defendant’s Case

Valerie Panozzo, an assistant public defender with the Cook County public defender's

office, testified that she had a conversation with Brown on the first day of trial. Panozzo testified

that Brown said that he was closer to Prittard than defendant. Panozzo also testified that Brown

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stated that he did not see anything on the day of the shooting; that he did not see the person who

shot the victim; and that he did not see defendant with a gun.

Milot Cadichon, a Chicago police officer, testified that he witnessed the shooting.

Cadichon testified that on September 6, 2003, he was in the vicinity of West 51st Street and

South Ashland Avenue, on his way home from his second job. Cadichon testified that he was

stopped at a red light when he saw a black male walk up to the victim's car, pull out a silver gun,

and stick it in the driver's face. Cadichon testified that he was unable to cross the intersection to

help the victim, so he dialed 911 and told them that he was witnessing a carjacking. As he

continued to watch, he saw the victim and a black male struggling over the gun, and eventually

the black male stepped back and fired three to five shots into the car. Cadichon heard three to

five shots, then watched as the offender fled the scene in a Chevy or Buick. Cadichon testified

that the offender was a young black man, approximately 6 feet tall, weighing about 150 pounds

with hair in short, close braids going toward the back of his head.

Cadichon testified that later that day he was shown a photo array containing seven photos,

including photos of defendant, Brown, and Prittard. Cadichon testified that he identified Isaac

Prittard as the shooter and identified Brown as the man in the getaway car, but he did not identify

defendant. Cadichon also testified that on October 25, 2003, he viewed the first lineup and made

two identifications of people he saw at the scene of the shooting. One person was Brown and the

other was Isaac Prittard, but he could not make a positive identification as to the shooter.

Brian Gary, child care worker for DCFS employed at the group home, testified that at the

time of the shooting, defendant, Brown, and Prittard were residents of the group home. Gary

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testified that child care workers at the group home would make notations in a logbook

documenting the comings and goings of the boys. Gary testified that on the day in question, the

logbook stated that the first to leave the home was Brown at 12:30 p.m., followed by Prittard at

12:45 p.m., and lastly defendant at 1:45 p.m. Gary testified that he was the only person on duty

that day and stated that his testimony was solely based on the log book; he had no independent

recollection of the events of September 6, 2003. On cross-examination, the State pointed out that

the 4 p.m. entry indicated that Prittard was in the group home, but the logbook did not indicate

when he had returned. Similarly, the 4 p.m. logbook entry indicated that defendant was out on a

pass, while the 4 p.m. census sheet entry indicated that he was at the group home.

The Jury Verdict, Sentencing, and Posttrial Motions

After closing arguments, the jury received the case and found defendant guilty of

attempted first degree murder, aggravated battery with a firearm, and attempted aggravated

vehicular hijacking. Defense counsel filed a motion for judgment of acquittal or, in the

alternative, a motion for a new trial. At the hearing on defendant's motions, defense counsel

argued that all of the State's witnesses presented contradictory testimony and that the State was

therefore unable to prove defendant guilty beyond a reasonable doubt. The trial court denied

defendant's motion, stating that there was enough evidence presented at trial for the jury to

convict.

During the sentencing hearing, the State argued that the court make a finding of severe

bodily injury, which would mandate that the attempted aggravated vehicular hijacking sentence be

served consecutively to the sentences for attempted murder and aggravated battery with a firearm.

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Defense counsel argued that the State's request was in violation of Apprendi because a finding of

severe bodily injury must be made by the jury. The trial court found that there was indeed a

severe bodily injury suffered by the victim. The trial court also found that:

"[A]s to the attempt murder and aggravated battery charges they will merge as

being for sentencing purposes I will sentence as to Count 1 and 2 to twelve years

in the Illinois Department of Corrections. And there will be a consecutive sentence

on Count 3 the attempt aggravated vehicular hijacking of four years in the Illinois

Department of Corrections."

On February 25, 2005, defendant filed a motion to reconsider sentence and vacate

conviction. Defendant argued that his conviction for aggravated battery with a firearm should be

vacated because the conviction was improper under the one-act, one-crime doctrine. Defendant

also argued that the imposition of consecutive sentences for the attempted first degree murder and

attempted aggravated vehicular hijacking convictions was in error for the following reasons: (1) a

judicial finding of severe bodily injury violated Apprendi; (2) defendant received no notice from

the State that it would be seeking consecutive sentencing and therefore was not given a

reasonable opportunity to present evidence or cross-examine witnesses in rebuttal of the State's

claim of severe bodily injury; and (3) the court's finding of severe bodily injury was not supported

by the evidence. The trial court denied the motion, finding that (1) defendant's conviction for

aggravated battery with a firearm did not violate the one-act, one-crime doctrine, as the trial court

merged the sentence for that conviction into the sentence for attempted first degree murder; (2)

the 12-year merged sentence took into consideration defendant's age and lack of criminal

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background; and (3) the finding of severe bodily harm was appropriate given the victim's trial

testimony regarding his hospital stay and recovery from the gunshot wounds. Defendant timely

appealed his conviction and sentence.

II. ANALYSIS

A. Right to Confront Witnesses

The first issue raised by defendant is the major issue on appeal. Defendant argues that the

trial court violated his sixth amendment right to confront his accusers when it refused to allow

him to impeach the testimony of the State’s witnesses with Brown’s prior adjudication of

delinquency. Defendant argues that the prior adjudication was necessary to show Brown’s lack of

veracity and prove the bias resulting from Ford’s need to procure drugs from Brown. Defendant,

citing People v. Triplett, 108 Ill. 2d 463, 486 (1985), argues that the trial court made “a

[c]onstitutional error of the first magnitude” and that “no amount of showing of want of prejudice

[could] cure it.”

Defendant asserts that he has an absolute and unqualified right to impeach the credibility

of witnesses against him. Defendant cites to several cases establishing the propriety of the

introduction of a witness’ prior adjudication of delinquency or drug use for impeachment. People

v. Strother, 53 Ill. 2d 95, 99 (1972); People v. Atkinson, 186 Ill. 2d 450, 461-62 (1999); People v.

Redmond, 146 Ill. App. 3d 259, 263 (1986); People v. Crisp, 242 Ill. App. 3d 652, 659 (1992);

Triplett, 108 Ill. 2d at 473-74. Defendant argues that these bases alone were sufficient to allow

examination of Brown’s prior adjudication.

Defendant argues that he was precluded from discovering additional evidence to make a

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preliminary showing that Brown received favorable treatment for his testimony or that he faced

the threat of charges, as this information was completely under the State’s control. Defendant

asserts that Brown’s prior adjudication provided the preliminary showing and the only other

means of determining if he had other charges dismissed was to ask Brown on the stand.

Defendant argues that this informal offer of proof was sufficient to allow use of the prior

adjudication to impeach Brown and Ford. Yamada v. Hilton Hotel Corp., 60 Ill. App. 3d 101,

110 (1977). Defendant asserts that his counsel’s comment that his conversations with defendant

elicited the information that Ford purchased drugs from Brown and was motivated to lie to

maintain her drug supply was an adequate offer of proof. Defendant argues that the trial court

erred in granting the motion in limine and later excluding questioning on this issue when he

provided the informal offer of proof.

The State argues that the trial court properly barred Brown’s prior adjudication of

delinquency because it represented a fishing expedition by defendant. The State argues that,

because defendant made no offer of proof at trial, he waived arguing the theories that Brown lied

to stay out of trouble or that Brown and Ford had a narcotics-based relationship. People v.

House, 197 Ill. App. 3d 1017, 1023 (1990). Counsel for defendant stood on his discussions with

defendant as his offer of proof, arguing that, even though defendant would not take the stand, that

was enough to allow his impeachment attempt. The State concludes that since there was no

evidence to support defendant’s contention, the argument was either waived or the evidence was

properly excluded as prejudicial with little to no probative value.

The State distinguishes Triplett, defendant’s central authority in his argument, from this

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case and argues that defendant’s reliance is misplaced. A witness in Triplett was in the custody of

the Department of Corrections at the time of the defendant’s trial as a result of his adjudication of

delinquency. Triplett, 108 Ill. 2d at 474. Furthermore, the witness had 10 juvenile delinquency

petitions filed against him between the time of the crime in question and the defendant’s trial and

had been adjudicated delinquent on two of them while the State retained leave to reinstate four of

the petitions. Triplett, 108 Ill. 2d at 474. The Triplett court found that the defendant was denied

his right to confront the witness against him because he was precluded from cross-examining the

witness about the 10 juvenile delinquency petitions filed against him and the numerous ways the

witness could be influenced to testify to what the State wanted. Triplett, 108 Ill. 2d at 486.

Therefore, the State concludes, the facts of this case, i.e., that Brown had a prior adjudication for

delinquency, no petitions pending and was not under the control of the Department of

Corrections, distinguish it from Triplett.

The trial court has discretion to impose reasonable limits on cross-examination to limit

possible harassment, prejudice, jury confusion, witness safety, or repetitive and irrelevant

questioning, and we review a defendant’s claim of a violation of the confrontation clause under

the abuse-of-discretion standard. People v. Blue, 205 Ill. 2d 1, 13-14 (2001). As summarized in

Blue, cross-examination is “‘the greatest legal engine ever invented for the discovery of truth’”,

and latitude is granted for counsel to explore the partiality of the witness. Blue, 205 Ill. 2d at 12,

quoting 5 J. Wigmore, Evidence §1367, at 32 (Chadbourn rev. ed. 1974). However, the Blue

court also notes that this latitude is “‘[s]ubject always to the broad discretion of a trial judge to

preclude repetitive and unduly harassing interrogation.’” Blue, 205 Ill. 2d at 12, quoting Davis v.

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Alaska, 415 U.S. 308, 316, 39 L. Ed. 2d 347, 353-54, 94 S. Ct. 1105, 1110 (1974).

A judge may limit the scope of cross-examination and unless the defendant can show his

or her inquiry is not based on a remote or uncertain theory, a court’s ruling limiting the scope of

examination will be affirmed. People v. Phillips, 186 Ill. App. 3d 668, 678 (1989). When a line

of questioning is objected to or denied by the trial court, the defendant must set forth an offer of

proof either to convince the trial court to allow the testimony or to establish on the record that the

evidence was directly and positively related to the issue of bias or motive to testify falsely.

Phillips, 186 Ill. App. 3d at 678. A formal offer of proof is typically required; however, an

informal offer of proof, involving counsel’s summary of what the proposed evidence might prove,

may be sufficient if specific and not based on speculation or conjecture. Phillips, 186 Ill. App. 3d

at 679.

In Phillips, defense counsel made only informal offers of proof regarding two witnesses’

alleged drug use and suspension for taking a bribe. Defense counsel argued that the impeaching

evidence was not based on mere rumor or speculation but based on documented evidence and

interviews with witnesses. The trial court found that defense counsel merely gave a brief

description of what the proposed evidence would show and did not provide a detailed explanation

as to how witnesses knew of the proposed evidence or provide any tangible evidence. Phillips,

186 Ill. App. 3d 677-78. Therefore, this court affirmed the trial court’s finding that the alleged

impeaching matters were based on conjecture and exclusion of that testimony was not an abuse of

discretion. Phillips, 186 Ill. App. 3d at 679.

We disagree with the State that defendant did not submit any offer of proof. However, we

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find that counsel’s informal offer of proof was properly rejected by the trial court and

insufficiently specific to preserve the alleged error for review. Defense counsel’s informal offer of

proof was, like that in Phillips, simply a conclusory statement based on his conversation with

defendant and speculation. Counsel did not give details about how defendant knew Ford relied

upon Brown for her needed drug supply, or that Brown was testifying to mollify the police and

stay out of trouble. Counsel revealed no specific information or testimony in support of his

contention.

We also agree with the State that Triplett is distinguishable from this case and does not

mandate reversal on constitutional grounds. The witness at question in Triplett was in custody at

the time of trial. The witness also had 10 separate petitions for juvenile delinquency against him,

with several that still could be reinstated by the State at the time of the trial. Brown had a

singular adjudication of juvenile delinquency for possession of a controlled substance. He was a

ward of the State at the time of trial, not under the custody of the Department of Corrections.

Counsel provided no offer of proof that Brown was motivated to testify falsely in exchange for

leniency from the police. The facts of this case, unlike those in Triplett, do not provide the

support for that claim or implicate constitutional protections.

Even if the exclusion of Brown’s prior adjudication of delinquency were improper, we find

that the exclusion would not be sufficiently prejudicial to warrant a new trial. House, 197 Ill.

App. 3d at 1023. There are three approaches to determine whether an error is harmless beyond a

reasonable doubt: (1) whether the error contributed to the conviction; (2) whether the other

evidence presented overwhelmingly supports conviction; and (3) whether the evidence that was

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excluded was duplicative or cumulative. People v. Gonzalez, 104 Ill. 2d 332, 338-39 (1984).

The evidence at trial satisfies the first two approaches.

The State presented eyewitness testimony of the victim who positively identified defendant

as the shooter. Testimony of Brown’s regular drug use was elicited at trial. Brown’s troubled

past was also presented, as his placement in the group home and oversight by DCFS was

established. Therefore, the probative value of Brown’s adjudication was minimal. Furthermore,

even if Brown’s testimony were fully discounted, the fact remains that the State presented the

testimony of the victim, which was sufficient to find defendant guilty beyond a reasonable doubt,

and exclusion of Brown’s adjudication was not so prejudicial to require a new trial. Therefore, it

cannot be said that the exclusion of Brown’s delinquency adjudication led to his conviction. The

other evidence presented by the State, namely, the eyewitness identification by the victim,

supported defendant’s conviction. Accordingly, even if there were error in excluding the

evidence, that error would be harmless.

B. Motion for Directed Finding and Proof Beyond a Reasonable Doubt

Defendant next argues that the trial court erred in denying his motion for directed finding

of not guilty. Inherent in review of this issue is a review of defendant’s third argument, that the

State failed to prove his guilt beyond a reasonable doubt. Therefore, both arguments will be

addressed together.

A motion for directed finding presents a question of law, and our review is de novo.

People v. Connolly, 322 Ill. App. 3d 905, 917-18 (2001). In considering the denial of such a

motion, we review the evidence presented by the State, in a light most favorable to the State, to

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determine whether a reasonable mind could fairly conclude defendant was guilty beyond a

reasonable doubt. Connolly, 322 Ill. App. 3d at 918. Similarly, in assessing the sufficiency of the

evidence to sustain a verdict on appeal, we do not retry the defendant; rather, we must view the

evidence in the light most favorable to the prosecution to determine if “‘any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’" (Emphasis

omitted.) People v. Bush, 214 Ill. 2d 318, 326 (2005), quoting Jackson v. Virginia, 443 U.S.

307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89 (1979).

“This means that [we] must allow all reasonable inferences from the record in the favor of

the prosecution.” People v. Cunningham, 212 Ill. 2d 274, 280 (2004). Where the evidence

allows conflicting inferences, resolving such conflicts is within the province of the jury. People v.

Campbell, 146 Ill. 2d 363, 380 (1992). Likewise, the determination of a defendant’s intent from

circumstantial evidence is a task best suited for the jury. People v. Moore, 358 Ill. App. 3d 683,

688 (2005). The jury need not search out explanations consistent with the defendant’s innocence

when determining whether a reasonable doubt exists. People v. Campbell, 146 Ill. 2d 363, 380

(1992).

Further, where the jury’s determination is dependent upon eyewitness testimony, its

credibility determinations are entitled to great deference and will be upset only if unreasonable.

Cunningham, 212 Ill. 2d at 280. In fact, the jury may believe as much, or as little, of any witness’

testimony as it sees fit. People v. Mejia, 247 Ill. App. 3d 55, 62 (1993). Whether eyewitness

testimony is trustworthy is typically within the common knowledge and experience of the average

juror. People v. Clark, 124 Ill. App. 3d 14, 21 (1984). If trustworthy, a single positive

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eyewitness identification may be sufficient proof of guilt. People v. Rojas, 359 Ill. App. 3d 392,

397 (2005). Thus, we will not substitute our judgment for that of the fact finder on what weight

is given to the evidence presented or the credibility of the witnesses. Campbell, 146 Ill. 2d at

375.

A defendant is guilty of attempt if, “with intent to commit a specific offense, he does any

act that constitutes a substantial step toward commission of that offense.” 720 ILCS 5/8-4(a)

(West 2004). Therefore, for attempted first degree murder, the State must prove defendant

intended to kill the victim. People v. Slywka, 365 Ill. App. 3d 34, 44 (2006); 720 ILCS 5/9-

1(a)(1) (West 2004). For attempted aggravated vehicular hijacking, the State must prove

defendant intended to take the victim’s motor vehicle by the use of force or threat of imminent

use of force while armed with a firearm. 720 ILCS 5/18-3, 4 (West 2004). Finally, in order to

sustain a charge of aggravated battery with a firearm, the State must prove that the defendant

“knowingly or intentionally” caused injury to another person by means of discharging a firearm.

720 ILCS 5/12-4.2(a) (West 2004). A person acts knowingly if he is consciously aware that his

conduct is practically certain to cause injury (720 ILCS 5/4-5 (West 2004)), while a person acts

recklessly if “he consciously disregards a substantial and unjustifiable risk” that the victim would

be harmed (720 ILCS 5/4-6 (West 2004)).

Defendant argues that, even when viewed in a light favorable to the prosecution, the

totality of the evidence leaves reasonable doubt as to the identity of the perpetrator and that intent

had not been proven by the State. Defendant argues that two of the State’s witnesses, Brown and

Ford, were inherently incredible based on their habitual drug use and abuse and their contradictory

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testimony. Defendant also argues that the victim’s testimony did not credibly identify defendant,

especially when reviewed in conjunction with Cadichon’s testimony. Furthermore, defendant

claims the State failed to overcome the testimony of Gary, the DCFS employee who was on duty

at the group home at the time of the crime.

Defendant also maintains that the victim’s testimony was incredible. Defendant argues

that the victim had a gun pointed at his head and then engaged in a struggle that resulted in his

being shot. Therefore, defendant concludes that the victim’s identification of him in a lineup six

weeks after the crime is not only suspect, but incredible. Defendant argues that the testimony of a

trained police officer, Cadichon, who witnessed the crime in broad daylight from across the

intersection, identifying Prittard as the shooter overcomes the victim’s testimony and establishes a

reasonable doubt.

In addition, defendant notes that Gary’s testimony that the logbook for the group home

indicated that defendant was at the group home at the time of the crime while both Prittard and

Norman were checked out. Defendant notes that the State did not impeach Gary’s testimony or

the logbook records. Defendant argues that this evidence, the contradictory testimony of the

State’s other witnesses, and the inherent lack of reliability of the victim’s identification require a

reversal of his convictions.

Defendant concedes that intent may be inferred from circumstantial evidence established at

trial. People v. Johnson, 331 Ill. App. 3d 239, 250 (2002). Defendant also concedes that simply

firing a gun at a person with disregard for human life may sufficiently support a conclusion of

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intent. People v. Mitchell, 209 Ill. App. 3d 562, 569 (1991). However, defendant argues that the

evidence presented by the State did not establish intent necessary for his convictions and the order

denying the motion for directed finding and the convictions must be reversed.

Defendant claims that the State’s evidence merely indicates that there was a struggle

between the victim and the assailant and not an intent to kill the victim. Defendant asserts that the

evidence demonstrates that the gun was discharged accidentally as a result of the struggle and that

any “pulling back” by the assailant could have been the result of the struggle and not a conscious

step back to fire the gun at the victim. Defendant also claims that there was no proof that

defendant intended to knowingly take the victim’s motor vehicle with respect to his attempted

aggravated vehicular hijacking charge. Defendant argues that the only evidence presented was

that the assailant told the victim to get out of his truck.

We agree with the State that the evidence presented supports the trial court’s denial of

defendant’s motion for directed finding and the jury’s finding of guilt beyond a reasonable doubt.

The evidence at trial included the eyewitness identification of the victim, which, as noted above, is

sufficient to uphold a conviction if found trustworthy by the jury. The contradictions identified

between Brown and Ford and the inherent lack of reliability of such habitual drug users is well-

noted. However, the jury was free to disregard such witnesses if it chose to do so, in light of the

victim’s testimony. Further, we will not second-guess the jury’s finding that the victim’s

testimony regarding his face-to-face encounter was more reliable than that of Cadichon. With

respect to Gary and the logbook, the State notes that the testimony at trial indicated that entries

into the logbook were not reliable evidence. In fact, Gray testified to errors in the logbook on the

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day of the crime.

The evidence at trial indicated that defendant approached the victim’s motor vehicle at the

stoplight with malice aforethought. Defendant produced a firearm and told the victim to get out

of the car. Next, a struggle ensued and defendant stepped back and fired three shots at the victim.

The fact that defendant fired his gun three times at the victim alone supports the jury’s finding of

an intent to kill under Mitchell. Furthermore, defendant’s threatening words and actions support

the rational inference that his conscious objective was to hijack the victim’s motor vehicle and

intentionally harm the victim by discharging his firearm.

C. One Act, One Crime

Defendant argues that his conviction for aggravated battery with a firearm must be

vacated based on the one-act, one-crime rule. People v. Crespo, 203 Ill. 2d 335 (2001). Under

the one-act, one-crime rule, a defendant may be convicted for one crime resulting from a single

act. People v. Dresher, 364 Ill. App. 3d 847, 863 (2006). Our review of this issue is de novo.

Dresher, 364 Ill. App. 3d at 863.

The parties do not dispute the fact that the shots fired by defendant constitute one act.

Defendant asserts that the trial court based its sentencing upon the multiple convictions for the

same act and that case law clearly requires that the lesser charge must be vacated. People v. Lee,

213 Ill. 2d 218, 226 (2004). Defendant continues to argue that the matter must be remanded for a

new sentencing hearing because the trial court based its sentencing decision on the multiple

convictions, but he cites no authority for that proposition.

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The State argues that Crespo is inapplicable to this case and that defendant has simply

misconstrued the statements of the trial court at sentencing. The State maintains that the trial

court did not enter two six-year sentences for the attempted murder and aggravated battery with a

firearm convictions, but a single 12-year sentence. In fact, the trial court stated that the

convictions were merged for sentencing, and the sentencing order reflects that merger. The State

concludes, also without authority, that this court should uphold defendant’s sentence and both

convictions.

Our research has found that People v. Radford, 359 Ill. App. 3d 411 (2005), is most

instructive to this case. In Radford, the defendant was convicted of attempted armed robbery and

attempted aggravated robbery based on the single act of grabbing a man, pretending a glass bottle

was a gun, and demanding money. Radford, 359 Ill. App. 3d at 413. The trial court found that

the lesser conviction should be vacated because our supreme court has “clearly held” that an

indictment must indicate an intention to treat a defendant’s conduct as multiple acts to support

multiple convictions. Radford, 359 Ill. App. 3d at 413, citing Crespo, 203 Ill. 2d at 345.

Therefore, where more than one conviction is based on the same physical act, “‘the less serious

offense must be vacated.’” Radford, 359 Ill. App. 3d at 419, quoting Lee, 213 Ill. 2d at 226-27.

Accordingly, the conviction for aggravated battery with a firearm must be vacated.

However, we agree with the State that remand for resentencing is unnecessary. Under

Radford, upon vacatur of a conviction under the one-act, one-crime rule, remand for re-

sentencing is not necessary absent an indication that the sentence imposed was improper.

Radford, 359 Ill. App. 3d at 419-20. The imposition of a sentence will not be disturbed absent an

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abuse of discretion. People v. Burrage, 269 Ill. App. 3d 67, 77 (1994). We grant the trial court

great deference, as it is in the best position to determine a proper sentence based on the particular

facts and circumstances of the case and attributes of the defendant such as his credibility,

demeanor, and general moral character. People v. Kennedy, 336 Ill. App. 3d 425, 433 (2002). A

sentence that is within statutory guidelines will be modified only if it is “greatly at variance with

the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense.”

Kennedy, 336 Ill. App. 3d at 433.

In this case, the trial court made it abundantly clear following defendant’s motion to

reconsider sentence that it had merged the convictions and imposed one sentence for the one act.

Specifically, the trial court stated:

“My ruling is as follows. As to point one, the attempt murder and

aggravated battery, I believe that it was the jury’s decision that they found

convictions for both the attempt murder and aggravated battery. I found that that

was one act, and that is why there was sentences as to attempt murder with the

aggravated battery merging. There was only one sentence as to the 12 year

sentence.” (Emphasis added).

The sentencing guidelines for Class X felonies are from 6 to 30 years’ imprisonment and

for a Class 1 felony from 4 to 15 years’ imprisonment. 730 ILCS 5/5-8-1(a)(3), (a)(4) (West

2004). The sentences imposed for attempted first degree murder and aggravated vehicular

hijacking are well within the guidelines. While the trial court agreed with defendant that his case

was not the worst the court had ever seen, it specifically found defendant’s actions were repulsive

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and required more than the statutory minimum. The trial court noted mitigating factors and

determined that defendant “certainly deserved” a sentence of 12 years for his egregious actions.

The trial court did not abuse its discretion and properly imposed a sentence of 12 years’

imprisonment for defendant’s attempted murder conviction.

D. Sentence Enhancement

Defendant asserts that the consecutive sentence imposed was unconstitutional under

Apprendi and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).

Defendant focuses on the language in Blakely that “the relevant ‘statutory maximum’ is not the

maximum sentence a judge may impose after finding additional facts, but the maximum he may

impose without any additional findings.” (Emphasis omitted.) Blakely, 542 U.S. at 303-04, 159

L. Ed. 2d at 413-14, 124 S. Ct. at 2537. In Blakely, the defendant pled guilty to second degree

kidnapping, which carried a maximum sentence of 10 years’ incarceration under the State of

Washington’s sentencing guidelines. However, the defendant pled guilty, and the sentencing

guidelines lowered the maximum for guilty pleas to 53 months. Therefore, the United States

Supreme Court found that 53 months was the maximum sentence and the trial court violated

Apprendi by imposing a 90-month sentence based on a finding of deliberate cruelty. Blakely, 542

U.S. at 302-04, 159 L. Ed. 2d at 413-14, 124 S. Ct. at 2537-38. Defendant argues that the trial

court increased defendant’s penalty in violation of Apprendi and Blakely by finding severe bodily

injury existed without submitting that question of fact to the jury and ordering his sentences be

served consecutively.

The State, citing People v. Wagener, 196 Ill. 2d 269, 286 (2001), and People v. Carney,

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196 Ill. 2d 518 (2001), argues that our supreme court has repeatedly held that Apprendi concerns

are not implicated by consecutive sentencing. The State notes that defendant was convicted of

two Class X felonies, attempted murder and aggravated battery with a firearm, which were

merged, and one Class 1 felony, attempted aggravated vehicular hijacking. The State argues that

the Unified Code of Corrections requires the sentencing court to impose consecutive sentences

where one of the crimes committed was a Class X or Class 1 felony and severe bodily injury was

inflicted. 730 ILCS 5/5-8-4(a)(i) (West 2004). Therefore, the State concludes that the sentences

imposed were within the guidelines and did not invoke Apprendi. The trial court’s order

sentencing defendant to 12 years’ imprisonment for attempted murder and aggravated battery

with a firearm, followed by a consecutive sentence of 4 years’ imprisonment for attempted

aggravated vehicular hijacking, was within the statutory guidelines mandating such a sentence.

We agree with the State. In People v. Lucas, 342 Ill. App. 3d 58, 64 (2003), this court

explained that the Wagener and Carney courts found that the imposition of consecutive sentences

did not implicate Apprendi because such an order only affects the manner in which the sentences

are served, not the length of the sentences. This court has also found that Blakely is “simply an

application of Apprendi” and not an expansion of that case. Weidner v. Cowen, 361 Ill. App. 3d

664, 666 (2005). Blakely involved the imposition of the singular sentence for the defendant’s

crime, not a consecutive sentence. Accordingly, we follow our established precedent, and

defendant’s consecutive sentences are affirmed.

III. CONCLUSION

For the foregoing reasons, we vacate defendant’s conviction for aggravated battery with a

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firearm and affirm the decision of the trial court with respect to the remaining issues. The

mittimus shall be corrected to reflect only defendant’s convictions and sentences for attempted

first degree murder and aggravated vehicular hijacking.

Affirmed in part and vacated in part.

CAMPBELL, J., concurs.

JUSTICE NEVILLE, dissents:

I respectfully dissent because I believe that Tabb was denied a fair trial. First, Tabb was

denied a fair trial when the trial court did not order the State to comply with Supreme Court Rule

412 (a) (188 Ill. 2d 412(a)) by disclosing to Tabb the pending and prior juvenile adjudication

records for Norman Brown, the State's eyewitness. Second, Tabb was denied his right to a fair

trial when the trial court granted the State's motion in limine and deprived Tabb of his sixth

amendment right to cross-examine Brown, a juvenile witness, about pending or prior

adjudications.

DISCLOSURE TO THE ACCUSED

The record reveals that on December 3, 2003, Tabb filed a discovery request in which he

specifically requested that the following information be disclosed by the State:

"9. Prior criminal records of State's witnesses to be used

for impeachment.

10. It is further requested that the prosecution disclose

whether there is pending against any witness listed in paragraph (2)

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supra, any criminal or civil action involving the People of the State

of Illinois or any such action pending during the pendency of the

prosecution of the accused, and if so, full disclosure as to the nature

and outcome of such legal action or actions."

The State answered Tabb's discovery request as follows

"No known record of criminal conviction which can be used for impeachment of intended

State witnesses ***. "

After the trial commenced, the record reveals that the following colloquy took place after

jury selection was concluded:

"MR. CHEVLIN: Judge, we have a motion in limine. I

was just informed by Defense Counsel that they have a certified

copy of a juvenile conviction against one of our witnesses, Norman

Brown. I was not aware of it. I do know he has no adult

convictions. Frankly, I don't think we ran a juvenile background

on him.

We would be objecting to any use of a juvenile conviction

for impeachment purposes. It's not a conviction. It's a finding of

delinquency. It's – One, it's a juvenile record, and, two, it's not a

conviction. It's a finding of delinquency. Its not the same thing."

The colloquy reveals that after jury selection, the assistant State's Attorney (ASA) informed the

court that he was making a motion in limine because defense counsel had a certified copy of a

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juvenile conviction for Norman Brown, one of the State's witnesses. The ASA further informed the

court that he was unaware of Brown's juvenile conviction. However, the ASA informed the court

that he was sure Brown had no adult convictions. Finally, the State made the following admission:

"I don't think we ran a juvenile background on him."

It is clear from the colloquy that the State did not run a juvenile background check on

Norman Brown, the State's juvenile witness. In addition, it appears from the colloquy that the

State had decided that Tabb was not entitled to the information it had concerning Brown's juvenile

background because the ASA believed that a finding of delinquency was not a "conviction."

Later, during the hearing on the State's motion in limine, Tabb's attorney informed the

court that on November 8, 2004, the day before the trial, the State tendered a copy of Brown's

background from the Chicago police department:

"MR. THEDFORD: *** As the Court knows Chicago

Police Department background as a juvenile will indicate

that a case was charged and referred to court. It's illegal to tender

to indicate what the disposition of the case was.

Based on the Court's order you signed yesterday we called

over to the juvenile facility, fax'd them a copy of that order and

they then informed us orally what the conviction is. It was one

conviction for PCS.1"

1
I assume that the attorney uses the acronym PCS to refer to a conviction for possession

of a controlled substance. 720 ILCS 570/402 (It is unlawful for any person to knowingly possess

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1-05-1640

Tabb's attorney makes it clear that the State only provided Tabb with Brown's juvenile

background information from the Chicago police department. Tabb's attorney explained that all

the police department information revealed was that Brown was charged and referred to court. I

note that Tabb’s attorney did not complain about the State’s failure to produce Brown's juvenile

adjudications because he believed it was “illegal to tender to indicate what the disposition of the

case was.” The record reveals that on November 8, 2004, the day before the trial commenced,

the trial court entered an order which provided that "the Public Defender may obtain any and all

records of the Juvenile Dispositions for Norman Brown." I also note that it was not until the trial

court issued its order and the order was faxed to the juvenile court that Tabb's attorney was

informed, orally, that Brown had one conviction for PCS.

Tabb's December 3, 2003, discovery motion clearly requested that the State disclose (1)

the prior criminal records of the State's witnesses; (2) any criminal or civil actions involving the

State's witnesses that were pending; and (3) the outcome of any actions involving the State's

witnesses. While Tabb's motion requested that the State disclose information about its witnesses,

the juvenile background information provided by the State from the Chicago Police Department

did not disclose if Brown had pending cases. The ASA's colloquy with the court makes it clear

that the State did not believe that Tabb was entitled to the information he requested in his motion,

therefore, the State did not run a background check in order to make a good-faith effort to

comply with Supreme Court Rule 412(a)(6).

The trial court's order directing that Norman Brown's juvenile disposition records be

a controlled or counterfeit substance).

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1-05-1640

tendered to Tabb did not result in Tabb obtaining the records he requested in his discovery

motion. Instead, Tabb was told orally that Brown had a PCS conviction. More importantly, it

should be noted that while the State's witnesses' records were requested in Tabb's discovery

motion that was filed on December 3, 2003, the oral information that Brown had a PCS

conviction was not received until November 8, 2004, the day before the trial started. People v.

Redmond, 146 Ill. App. 3d 259, 263 (1986), makes it clear that an adjudication of delinquency,

probationary status, and pending criminal charges are admissible for impeachment, and

impeachment comes within the purview of the Brady rule. Therefore, I believe that the State

violated Supreme Court Rule 412 (a) (6) by failing to provide Tabb with the criminal records for

its witnesses, specifically Norman Brown, that he requested in his discovery motion and that the

State's violation was not corrected when the trial court entered its order because no juvenile

records were tendered to Tabb. Redmond, 146 Ill. App. 3d at 263.

When there is a discovery violation, case law requires a reviewing court to determine

whether the defendant was prejudiced by the discovery violation. See People v. Greer, 79 Ill. 2d

103, 120 (1980); People v. Stokes, 121 Ill. App. 3d 72, 75 (1984). Illinois follows Rule 609 of

the Federal Rules of Evidence. See People v. Montgomery, 47 Ill. 2d 510, 516-19 (1971). Rule

609(d) provides that evidence of juvenile adjudications is generally not admissible, but permits the

judge in a criminal case to admit evidence of a juvenile adjudication of any witness, other than the

accused, if the adjudication involves the kind of offense that would be admissible as a prior

conviction to attack the credibility of an adult and if the court is satisfied that the evidence is

necessary for a fair determination of the issue of guilt or innocence. Fed. R. Evid. 609(d).

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Brown is not the accused but a witness in this case so, according to Rule 609(d), his prior

juvenile adjudications would be admissible evidence if Tabb met the two conditions in Rule

609(d). Fed. R. Evid. 609(d). Tabb meets the first condition in Rule 609 because it is axiomatic

that a conviction for possession of a controlled substance could be used to attack the credibility of

an adult; therefore, the evidence could be used to impeach Brown. Tabb also meets the second

condition in Rule 609 because evidence concerning the juvenile delinquency adjudications of a

witness is admissible for the purpose of showing motive or bias and, since Brown was an

eyewitness and a suspect in the same crime, a fair trial necessitated that Brown be cross-examined

with his juvenile adjudications. See People v. Sharrod, 271 Ill. App. 3d 684, 689 (1995)

(evidence that a witness first accused the defendant at the time the witness was on juvenile

probations can be explored by the defense on cross-examination to explore the bias of the witness;

and the case was reversed because the State failed to disclose that its witness was on juvenile

supervision). Brown had a motive to testify falsely because a police officer who witnessed the

crime testified at the trial that Brown was one of the offenders. Therefore, Brown's credibility

was at issue because he was also a suspect, and Tabb's ability to cross-examine Brown and to

impeach him with his prior adjudications is evidence that was required for a fair determination of

the issues. See People v. Redmond, 146 Ill. App. 3d 259, 264 (1986) (case reversed where State

failed to disclose the criminal and juvenile records of a witness who was accused of being the

perpetrator of the offense); Stokes, 121 Ill. App. 3d 72, 75-76 (1984) (case reversed where the

State failed to provide defendant with witness' burglary conviction because the case hinged on

credibility).

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I acknowledge that the State's failure to comply with Tabb's discovery requirements does

not automatically necessitate a new trial. Harris, 123 Ill. 2d at 151. I also acknowledge that a

new trial should only be granted if Tabb was prejudiced by the discovery violation and the trial

court failed to eliminate the prejudice. Harris, 123 Ill. 2d at 151-52; People v. Cisewski, 118 Ill.

2d 163, 172 (1987). Among the factors to be considered in determining whether a new trial is

warranted are: (1) the strength of the undisclosed evidence; (2) the likelihood that prior notice

could have helped the defense discredit the evidence; and (3) the willfulness of the State in failing

to disclose. Harris, 123 Ill. 2d at 152.

I believe the State's undisclosed evidence, Brown’s juvenile adjudication records, was

important evidence that would have assisted Tabb in his defense. Brown's juvenile adjudication

records were important because his prior adjudication would have allowed Tabb to impeach

Brown in front of the jury and provide an explanation for his motive to lie. Cross-examination

reveals biases, prejudices and ulterior motives of a witness, and one way to discredit a witness is

to introduce evidence of a prior conviction. People v. Blue, 205 Ill. 2d 1, 12-13 (2001). Brown's

records regarding "pending criminal matters," which the State did not look for, may have revealed

that he was on probation or had other pending charges which would prompt him to cooperate

with the State by lying to prevent the State from charging him with the offenses Tabb was

charged with: attempted first degree murder, aggravated battery with a firearm and aggravated

vehicular hijacking. The State's failure to provide Tabb with Brown's juvenile adjudication

records was not cured by the trial court issuing an order because it produced no records and Tabb

was prejudiced because the oral report was provided on the eve of his trial and it affected his

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ability (1) to prepare his defense and make tactical decisions with the aid of the information, and

(2) to impeach Brown and establish his biases, prejudices or ulterior motives in testifying for the

State.

IMPEACHMENT BY JUVENILE ADJUDICATIONS

The second question we must address is whether the trial court erred when it granted the

State's motion in limine and excluded evidence concerning Brown's prior juvenile adjudication.

When ruling on the State's motion, the court made the following statement:

"THE COURT: Based on the cases you have cited in the

highlighted area that these prior bad acts, weighing the probative nature

versus the prejudicial nature, that is it is a Possession of Controlled

Substance charge, looking - - weighing it I don't see where its

probativeness outweighs the prejudicial effect. I will deny your request."

The court held that the prejudicial nature of Brown's adjudication for possession of a controlled

substance outweighed its probative value. The trial court erred when it ignored Rule 6092 and

2
"(a) General rule. - For the purpose of attacking the credibility of a witness, (1) evidence

that a witness other than an accused has been convicted of a crime shall be admitted, subject to

Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the

law under which the witness was convicted, and evidence that an accused has been convicted of

such a crime shall be admitted if the court determines that the probative value of admitting this

evidence outweighs its prejudicial effect to the accused.

***

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applied Rule 403.3 The trial court overlooked the fact that Rule 609(d) governs the admission of

juvenile adjudications and permits juvenile adjudications to be admitted (1) if the offense would

be admissible to attack the credibility of an adult, and (2) if the court is satisfied that the admission

of the evidence is necessary for a fair determination of the issues. Fed. R. Evid. 609(d). First, as

previously indicated, a conviction for possession of a controlled substance could be used to attack

the credibility of an adult. Second, instead of using the prejudicial-effect-versus- probative-value

test in Rule 403 when admitting juvenile adjudications, Rule 609 uses a fair- determination-of-the-

issues test. Fed. R. Evid. 609(d). I submit that Brown was an eyewitness and a suspect in the

crime; therefore, his juvenile adjudication records were necessary for his cross-examination and

for a fair determination of the issues in Tabb's case. Accordingly, the trial court erred when it

granted the State's motion in limine and excluded evidence concerning Brown’s juvenile

adjudications because Rule 609 does not use a prejudicial-effect-versus-probative-value test to

determine whether the juvenile adjudications of a witness other than the accused are admissible in

(d) Juvenile adjudications. *** The court may, however, in a criminal case allow evidence

of a juvenile adjudication of a witness other than the accused if conviction of the offense would be

admissible to attack the credibility of an adult and the court is satisfied that the admission in

evidence is necessary for a fair determination of the issue of guilt or innocence." Fed. Rs. Evid.

609(a), (d).
3
Evidence may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.

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1-05-1640

evidence. Compare Fed. R. Evid. 609(d) with Fed. R. Evid. 403.

Even if the trial court used the prejudicial-effect-versus-probative-value test in Rule 403, it

should have denied the State's motion. Rule 609 provides that Rule 403 applies to witnesses

other than the accused. Fed. R. Evid. 609(a). While Rule 403 applies to witness evidence other

than juvenile adjudications (Fed. R. Evid. 609(d)), it provides that evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues

or misleads the jury. See Fed. R. Evid. 403. The comment for Rule 403 makes it clear that

"[v]irtually all evidence is prejudicial or it isn't material." 1 J. Weinstein & M. Berger, Weinstein's

Evidence par. 403[03], at 403-33 (1975) (The meaning of "prejudice"). The admission of

Brown's juvenile adjudication records would effect his credibility but would not prejudice him for

three reasons: (1) Brown was not a co-defendant in Tabb's case so the admission of his prior

adjudication records would not result in his conviction; (2) Tabb was charged with three criminal

offenses so Brown's prior juvenile adjudications would not confuse the issues in Tabb's criminal

case; and (3) Brown was not a codefendant so his prior adjudication records would not mislead

the jury attempting to determine Tabb's guilt or innocence. Accordingly, since Brown was a

witness and would not have been prejudiced by the admission of his juvenile adjudications at

Tabb’s trial, the trial court erred when it granted the State’s motion in limine and excluded

Brown's juvenile adjudications because Brown's prior adjudication records would not prevent the

jury from deciding Tabb's case on its factual merits.

The majority found that the exclusion of Brown's prior adjudication was a harmless error

for two reasons: (1) because the error did not contribute to Tabb's conviction; and (2) because the

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other evidence (Gomez's, the victim's, testimony) overwhelmingly supported Tabb's conviction. I

disagree with the majority's conclusions. First, the majority is in error when it says that Brown's

testimony did not contribute to Tabb's conviction because Brown's testimony corroborated

Gomez's testimony. It is my considered opinion that Gomez's testimony was of limited value

without Brown's testimony because Gomez testified (1) that he did not see the offender approach

his window, and (2) that the encounter with the offender lasted between 5 and 10 seconds. Given

the fact that Gomez had a 5- to 10- second encounter with the offender, without Brown's

corroboration, Gomez's identification testimony would be questioned by the jury. Second, if

Brown's corroborating testimony is impeached and if we are left with Gomez's testimony, we do

not have overwhelming evidence of Tabb's guilt because Gomez's identification of Tabb as the

shooter was contradicted by Officer Cadichon's identification of Prittard as the shooter and

Brown as a second offender. It should be noted (1) that Brown testified that he and Prittard were

at the crime scene when Tabb shot Gomez; and (2) that by placing himself and Prittard at the

crime scene, Brown's testimony corroborates Officer Cadichon's testimony, in part, because the

officer testified that Prittard was the shooter and that Brown was the man in the getaway car.

Therefore, if Tabb had been permitted to cross-examine and impeach Brown with any pending

cases and with his prior adjudication, I do not think the jury would have convicted Tabb based on

Gomez's identification because it was based on a 5- to 10- second encounter with the offender.

CONCLUSION

In conclusion, I note that the sixth amendment provides: “In all criminal prosecutions, the

accused shall enjoy the right *** to be confronted with the witnesses against him ***.” U.S.

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Const., amend. VI; accord Ill. Const. 1970, art. I, §8 (“In criminal prosecutions, the accused shall

have the right *** to be confronted with the witnesses against him or her”). "Confrontation

forces the prosecution's witnesses to submit to cross-examination (California v. Green, 399 U.S.

149, 158, 26 L. Ed. 2d 489, 497, 90 S. Ct. 1930, 1935 (1970)), 'beyond any doubt the greatest

legal engine ever invented for the discovery of truth' (5 J. Wigmore, Evidence §1367, at 32

(Chadbourn rev. ed. 1974))." Accordingly, a criminal defendant's constitutional right to

confrontation includes the right to cross-examine. Douglas v. Alabama, 380 U.S. 415, 418, 13 L.

Ed. 2d 934, 937, 85 S. Ct. 1074, 1076 (1965). Blue, 205 Ill. 2d 1 at 12.

I note that " ' [c]ross-examination is the principal means by which the believability of a

witness and the truth of his testimony are tested.' " Blue, 205 Ill. 2d 1 at 12 , quoting Davis v.

Alaska, 415 U.S. 308, 316, 39 L. Ed. 2d 347, 353, 94 S. Ct. 1105, 1110 (1974). A

cross-examiner has traditionally been allowed to impeach, and discredit witnesses by introducing

evidence of prior criminal conviction of that witness to reveal possible biases, prejudices, or

ulterior motives of the witness as they may relate directly to issues in the case. Blue, 205 Ill. 2d at

12-13; Gonzalez, 104 Ill. 2d at 337 (the right to cross-examine a witness as to his biases,

prejudices or ulterior motives is protected by the federal and state constitutions). In this case, (1)

by failing to order the State to produce Brown's juvenile adjudications prior to trial, and (2) by

erroneously granting the State's motion in limine and denying Tabb the opportunity to cross-

examine Brown with his prior juvenile adjudications, Tabb was not permitted to impeach Brown's

testimony by establishing his biases, prejudices and ulterior motives for testifying falsely.

Redmond, 146 Ill. App. 3d at 264; Stokes, 121 Ill. App. 3d at 75-76. Accordingly, Tabb was

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denied a fair trial.

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