People v. Paris
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0231
Case Date: 03/25/1998
NO. 4-96-0231
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
STEPHEN PARIS, ) No. 94CF597
Defendant-Appellant. )
) Honorable
) Thomas R. Appleton,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Following a jury trial, defendant was convicted of
first degree murder (felony murder), armed robbery, and unlawful
use of a weapon. 720 ILCS 5/9-1(a)(3), 18-2(a), 24-1(a)(4) (West
1994). Defendant was sentenced to concurrent terms of 20 years'
and 15 years' imprisonment on the murder and armed robbery
convictions, respectively, and a consecutive sentence of 2 years'
imprisonment on the unlawful use of a weapon conviction. On
appeal defendant argues (1) the trial court abused its discretion
in quashing subpoenas issued to the attorneys for the State and
two of his codefendants, and (2) he was denied effective assis-
tance of counsel on the unlawful use of a weapon charge.
Defendant's conviction was a result of events that
occurred on October 23, 1994. On that evening, Jason Smith,
along with two masked men, Shain Ford and Terrence Woods, entered
the residence of Michael Talley in Springfield. The three
intruders, who were armed with handguns, demanded money and
drugs. One of the masked men, Woods, shot and killed one ofTalley's guests. After the shooting, Talley gave a box con-
taining money and drugs to Smith, who then gave the box to one of
the masked men, and the three fled the house.
Smith spoke with police the following day, October 24,
and identified Shain Ford and Terrence Woods as suspects in the
shooting incident. Smith also indicated that defendant had given
him a ride from Springfield to Decatur following the shooting.
On October 25, 1994, Ford told police that defendant had informa-
tion regarding the incident.
During an interview with the police on November 1,
1994, defendant gave a statement and confirmed that on the
evening of October 23, 1994, he drove Smith to Decatur. On the
way to Decatur, Smith told defendant that Woods had shot someone.
On January 5, 1995, the police followed defendant while he was
driving his car to his mother's residence. After defendant
reached his mother's residence, emerged from his car, and spoke
with police, he agreed to go with them to the station to talk
about additional information police had received from Smith and
Ford regarding the October 23 incident. As defendant and police
were getting ready to leave the premises, defendant approached
his car. When Detective Young asked defendant if any weapons
were located inside his car, he responded that a .380 gun was in
the glove box and its clip was on the driver's visor. The police
took possession of the handgun, which was not loaded, and the
clip, which contained seven rounds. Defendant and police pro-
ceeded to the police station as planned, where defendant gave
another statement.
At the station defendant gave a statement describing to
police the events that transpired on October 23. Defendant drove
Smith, Ford, and Woods to Talley's residence on that evening in
order to obtain marijuana. Defendant dropped the three men off
at Talley's residence and agreed to pick them up on a street near
the house. Ten to fifteen minutes later, defendant heard a
shot, saw the three men running toward the car, and saw Ford
carrying a metal box. Inside the car, Smith indicated Woods had
shot someone. Defendant drove the men to his house, where they
split up the marijuana and money contained in the metal box.
After defendant gave that statement, Officer Young contacted
Assistant State's Attorney (ASA) Walker about finding the gun in
defendant's car. Defendant was subsequently arrested and charged
with unlawful use of a weapon as a result of the police finding
the .380 gun in defendant's car. But, at that time, he was not
charged with anything relating to the events on October 23, 1994.
During a January 6, 1995, interview, defendant acknowledged he
knew about the plan to rob Talley prior to driving the three men
to the house. Defendant was charged by information on January
12, 1995, with first degree murder, armed robbery, and unlawful
use of a weapon.
Both Smith and Ford testified against defendant at
defendant's trial and against Woods at his trial. While testify-
ing at defendant's trial, both Ford and Smith incriminated
themselves in the October 23 shooting incident. After he testi-
fied at Woods' trial and before he testified at defendant's
trial, Smith sent a letter on November 28, 1995, to ASA Walker
requesting leniency in his sentencing. At defendant's trial
Smith testified that his trial had been continued on numerous
occasions and eventually was to take place after the completion
of defendant's trial. However, Smith denied the State had
offered him a deal in exchange for his testimony against defen-
dant. Smith testified that he had not made a deal with the State
regarding the sentence he would receive in his case, but that one
reason he testified against defendant was because he had an
expectation he would get some type of deal.
During his testimony, Smith described in detail
defendant's role in the robbery. According to Smith, he and
defendant had discussed robbing Talley in the past, as well as on
October 23. Defendant recommended to Smith that they get Woods
to help them in the robbery. When Smith picked up defendant that
evening, defendant gave Smith a loaded .380 chrome handgun.
After defendant and Smith picked up the other two men, defendant
drove the men to Talley's house, waited in the car during the
robbery, and drove the men back to his house.
Ford also testified as to defendant's role in the
robbery. Ford testified that in the car on the way to Talley's
he saw defendant give Smith a gun. Ford also indicated that
defendant drove the men to Talley's house, and on the way, all
four discussed the robbery plan. Following the robbery, defen-
dant drove the men back to his house, where they split the
proceeds.
Like Smith, Ford testified that his trial was continued
several times and he was awaiting trial at the time of
defendant's trial. Ford also denied having a deal with the State
and denied the State ever told him he would get a particular
sentence for his testimony against defendant and Woods. Ford did
testify that one reason he was testifying against defendant and
Woods was his expectation that he would get a deal from the
State, but that no one from the State's Attorney's office or the
police had ever indicated that he was facing anything less than
20 to 60 years' imprisonment for first degree murder. The court
instructed the jury that the testimony of coconspirators should
be viewed with caution.
On December 18, 1995, defendant was found guilty of the
three offenses charged: first degree murder, armed robbery, and
unlawful use of a weapon. On March 20, 1996, both Smith and Ford
entered negotiated guilty pleas to armed robbery and home inva-
sion, while the first degree murder charges against both were
dismissed.
After denying defendant's motion for a new trial, the
court sentenced him. Defendant then filed motions to vacate
judgment and reduce sentence. In his motion to vacate judgment,
defendant alleged that the chronology of events in his case
indicated that Smith and Ford knew a deal with the State was in
effect when they testified against defendant, but that they
denied the existence of a deal during their testimony. Defendant
argued that he was denied due process since the State, during his
trial, did not correct Smith and Ford's testimony to reflect that
the State in fact had a deal with Smith and Ford in exchange for
their testimony against defendant. In support of that motion,
defendant subpoenaed ASA Walker, Ford's attorney, and Smith's
attorney. It was defendant's attorney's expectation that at the
hearing on the motion to vacate judgment, the testimony of the
subpoenaed attorneys would establish that a deal had been reached
between the State and Smith and Ford before defendant went to
trial.
ASA Walker and Ford's attorney moved to quash the
subpoenas. While Smith's attorney did not appear, ASA Walker
indicated Smith's attorney was joining in the motion to quash the
subpoenas. The court did not require Walker to testify under
oath and she was not questioned by defendant's attorney. ASA
Walker noted that she was bound by her oath as an officer of the
court and stated that Smith and Ford had not been told of a deal
at the time they testified against defendant and "there was no
firm deal or offer" given to Ford's attorney or to Smith's
attorney until after the completion of defendant's trial. Walker
also explained that there were no negotiations by any of the
parties prior to Smith's and Ford's testimony at defendant's
trial. Ford's attorney agreed with ASA Walker, as an officer of
the court (not under oath other than that) as to the negotiations
between the State and his client. The court denied defendant's
motion to vacate and explained "you have the statements which I
consider to be sworn by the two officers of this Court, one on
either side of those negotiations, which said clearly that no
deal was struck and beyond that I'm not going to permit you to
go."
The court did grant defendant's motion to reduce
sentence on the felony murder conviction from 30 years to 20
years' imprisonment. The court noted that Smith had entered a
plea for 18 years' imprisonment and Ford had entered a plea
capping his imprisonment at 20 years. The court explained fur-
ther, "Mr. Smith and Mr. Ford, who also went into the house with
loaded weapons, got eighteen and let's say twenty each, and Mr.
Paris, who's the driver, wasn't even inside the house, sentenced
to thirty years, and that sentence fails the test, my test of
fairness based on proportionality."
On appeal, defendant argues the trial court abused its
discretion by quashing the subpoenas issued to the ASA and
Smith's and Ford's attorneys. Defendant asks that we remand the
cause for a hearing on that issue and allow defense counsel to
call the ASA and Smith's and Ford's attorneys and examine them
under oath as to any deal between the State and Smith and Ford at
the time they testified at defendant's trial. The State argues
that defendant has waived this issue because he failed to raise
it in his first posttrial motion. Failure to raise an issue in a
posttrial motion results in a waiver of that issue on appeal.
People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129
(1988). In this case, defendant did not waive this issue on
appeal, as it was properly included in a timely filed posttrial
motion.
A violation of due process occurs when the State allows
the presentation of known false evidence to go uncorrected.
Giglio v. United States 405 U.S. 150, 153, 31 L. Ed. 2d 104, 108,
92 S. Ct. 763, 766 (1972). It is the responsibility of the
prosecutor to disclose "any understanding or agreement" it has
entered into to procure the testimony of a witness, as such an
understanding is relevant to the credibility of the witness.
Giglio, 405 U.S. at 154-55, 31 L. Ed. 2d at 109, 92 S. Ct. at
766; People v. Jimerson, 166 Ill. 2d 211, 225-26, 652 N.E.2d 278,
285 (1995). The prosecutor must disclose the full and true back-
ground for the appearance of a witness, including any unspoken
understanding between the witness and the State. People v.
McKinney, 31 Ill. 2d 246, 250, 201 N.E.2d 431, 433 (1964); People
v. Nino, 279 Ill. App. 3d 1027, 1037, 665 N.E.2d 847, 854 (1996).
The special witness doctrine is applicable to prosecu-
tors, judges, and, in certain circumstances, criminal defense
attorneys and reporters. The doctrine provides that when a
defendant in a criminal case subpoenas the prosecutor or judge
(or presumably a criminal defense attorney), the trial court
should conduct a hearing to determine whether it will permit
those subpoenas to stand. A defendant must make a plausible
showing that the testimony sought is material and favorable to
his defense. People v. Palacio, 240 Ill. App. 3d 1078, 1096-97,
607 N.E.2d 1375, 1386 (1993). At the hearing, the defendant must
(1) state the testimony he expects to elicit from the subpoenaed
witness, (2) why that testimony is relevant and necessary to his
case, and (3) the efforts he has made to secure the same evidence
through alternative means. A court of review will not overturn a
trial court's determination on whether to quash such a subpoena
absent an abuse of discretion. Palacio, 240 Ill. App. 3d at
1102, 607 N.E.2d at 1390.
We hold that the trial court did not abuse its discre-
tion by quashing the subpoenas and not requiring the attorneys to
be sworn. The trial court did conduct a hearing to determine
whether it would permit those subpoenas to stand. The court
asked the attorneys if, as officers of the court, any deal
between the State and Smith and Ford had been reached in return
for their testimony at defendant's trial. The ASA indicated that
no firm deal had been reached and that no negotiations had taken
place between the State and the two witnesses before they testi-
fied at defendant's trial. Ford's attorney agreed with ASA
Walker's representations. After these comments by the attorneys,
there was no basis for defendant to believe a deal had been
reached between the State and Ford and Smith before they testi-
fied at defendant's trial. Furthermore, at defendant's trial,
the jury was fully apprised of the exact situation existing at
the time Smith and Ford testified. Both witnesses denied any
agreement had been reached with the State. Their credibility
was, however, attacked because both stated that one reason for
testifying against defendant was their expectation that they
would get some type of deal from the State.
Even if the trial court erred in quashing the subpoe-
nas, and even if the State in fact failed to disclose a deal
between the State and the two witnesses, such error is harmless.
At trial, the State presented other evidence, apart from Smith's
and Ford's testimony, that overwhelmingly supported a finding of
defendant's guilt. Talley testified that one to two months prior
to the robbery defendant asked him if he had ever been robbed and
if he knew Terrence Woods. In addition to Talley's testimony,
defendant also told Talley to be careful. Defendant also gave
statements to the police implicating himself in the crime. In
those statements, defendant described his role in the robbery,
taking the three men to Talley's house and driving them to his
house after the robbery, where they split the proceeds. Defen-
dant also admitted he knew about the robbery plan prior to
driving the men to Talley's house.
Defendant's final contention on appeal is that he was
denied effective assistance of counsel on the unlawful use of a
weapon charge. Defendant argues his counsel was ineffective
because she failed to impeach a witness for the prosecution and
failed to develop an available defense. Defendant contends the
errors resulted from ignorance of the law, as opposed to trial
strategy, and that but for counsel's errors, there is a reason-
able probability that the verdict on the unlawful use of a weapon
charge would have been different.
After defendant gave a statement to the police and was
arrested and charged with unlawful use of a weapon on January 5,
1995, his counsel filed a motion to suppress, alleging
defendant's statement was the fruit of an illegal arrest. The
motion was premised, in part, on the theory that defendant's
possession of the weapon was not unlawful because it was in a
"non-functioning state," an exemption to the unlawful use of
weapons statute. 720 ILCS 5/24-1(a)(4), 24-2(b)(4) (West 1994).
Defendant claimed his weapon was in a "non-functioning state"
because its firing pin was broken.
At the hearing on the motion to suppress, Detective
Young acknowledged that when he recovered the gun from defen-
dant's car on January 5, defendant told him that the firing pin
on the gun was broken. Detective Young went on to testify
regarding this matter:
"Q [By defense counsel]: Was the firing
pin in working order when you confiscated it
from him?
A I believe it was broken. I'm not
for sure. I'm trying to remember.
Q So the gun was nonfunctioning, is
that correct?
A If the firing pin was broken--and I
can't remember; I believe it should be in my
report--the gun would be nonfunctioning, yes.
* * *
Q All right. And you did just testify
that you believed [the] firing pin on the gun
was nonfunctional, is that correct?
A I can't recall specifically, but I
know in conversation with him he said he has
dry fired it before; and as a result of that,
the fire pin broke."
On redirect examination by the prosecutor, Detective
Young testified:
"Q Could you tell at that point [when
the gun was removed from the car] whether or
not the firing pin was broken?
A No, ma'am.
Q And, in fact, what does it take to
find out that the firing pin is broken?
A You have to actually take the gun
apart in a manner to expose the firing pin.
Either that or you could fire it and if it
didn't fire you assume that something was
functionally wrong with it and check it and
see if the fire pin was broken or not.
Q Did you do any of those?
A No, ma'am."
At trial, Detective Young also testified as to whether
the firing pin on the gun found in defendant's car was in working
order:
"Q [By prosecutor]: Are you able by
looking at it to examine the firing pin?
A Yes, I am.
Q And can you describe the condition of
the firing pin?
A It's in working order."
At trial, defense counsel did not attempt to impeach
Detective Young with his testimony from the hearing on the motion
to suppress.
After his conviction, defendant filed a motion for a
new trial. In the motion, defense counsel emphasized that
whether the firing pin on defendant's gun was broken was of
paramount importance in the trial. Defense counsel explained:
"Detective Young's testimony at trial, was
false regarding his knowledge of the condi-
tion of the gun. He lied when he said he
could tell if the firing pin was broken,
just by looking at the gun. Attorney Reid
[(defense counsel)] was surprised by Detective
Young's testimony, since it was completely
the opposite of what he said at the Motion to
Suppress. However, not immediately knowing
which of his testimonies was true, she could
not impeach him. Attorney Reid had relied on
Detective Young's previous testimony, at the
Motion to Suppress, that you had to take a
gun apart, or fire it, to see if the firing
pin was broken. She had no reason to inquire
further on that issue, because Detective Young
had testified in the defendant's favor at the
Motion to Suppress. She had not inquired,
prior to the trial, of any experts on the
issue, because she didn't believe Detective
Young would change his testimony.
However, after the trial, Attorney Reid
discovered that you cannot positively tell if
a firing pin is broken on a gun, unless it
is taken apart or fired. It was not for lack
of due diligence that this information was
not discovered earlier. Detective Young's
perjurious testimony was not anticipated or
expected by the defense.
The State had ample opportunity before
the trial, to fire the gun or to take it apart,
to see if the firing pin was broken. It was
their burden to prove that the defendant's
arrest was lawful, and they failed to meet
that burden when they failed to test the
weapon. Instead, they introduced the per-
jurious testimony of Detective Young to
support their case."
A person commits the offense of unlawful use of a
weapon when he knowingly carries or possesses a gun in any
vehicle except when he is on his land, in his abode, or fixed
place of business. 720 ILCS 5/24-1(a)(4) (West 1994). However,
the offense does not apply when a person is transporting weapons
that are broken down in a "non-functioning state." 720 ILCS
5/24-2(b)(4) (West 1994). The Criminal Code of 1961 also pro-
vides that the defendant has the burden of proving any exemption
to the offense, including the "non-functioning state" exemption.
720 ILCS 5/24-2(h) (West 1994).
On appeal, defendant asserts that he was denied effec-
tive assistance of counsel on the unlawful use of weapons charge
because (1) his trial counsel did not impeach Officer Young's
trial testimony, and (2) his trial counsel failed to adequately
develop the exemption to the charge because she believed the
burden was on the State to prove defendant's weapon was function-
al. To support his contentions, defendant points to the motion
for new trial, where defense counsel noted that (1) she could not
impeach Officer Young's testimony because she did not know
whether his testimony at the hearing on the motion to suppress or
at trial was true, and (2) it was the State's burden to prove
that defendant's arrest was lawful and because it failed to test
the weapon to determine whether its firing pin was broken it
failed to meet its burden. Defendant asserts that based on this
misunderstanding of the law (that the State had to prove the gun
was in working order, not that the defendant had to prove he was
entitled to an exemption), trial counsel failed to conduct an
independent investigation into whether the firing pin was func-
tional. And on the impeachment issue, defendant argues that
impeachment of a witness does not require the attorney to know
which of the two statements was accurate, and that Young's
statement from the hearing on the motion to suppress could have
been offered as substantive evidence, because it was made under
oath at a hearing. 725 ILCS 5/115-10.1 (West 1994).
In order to establish ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,
104 S. Ct. 2052 (1984), a defendant must show that (1) counsel's
representation fell below an objective standard of reasonable-
ness, and (2) that but for counsel's unprofessional errors, there
is a reasonable probability that the result of the proceedings
would have been different. Strickland, 466 U.S. at 687-88, 694,
80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome of the trial. Strickland, 466 U.S. at 694, 80 L.
Ed. 2d at 698, 104 S. Ct. at 2068.
Young's testimony at the suppression hearing, that
defendant told him the firing pin was nonfunctioning but he had
not tested the gun to see if it was in working order, and his
testimony at trial, that the firing pin was in working order,
suggests that Young took the necessary steps between the suppres-
sion hearing and trial to determine the firing pin was not
broken. Defense counsel could have attempted to impeach Young
with his testimony from the suppression hearing, but had she done
that, she ran the risk that Young would identify the steps he had
taken since the suppression hearing to determine whether the
firing pin was broken. Furthermore, there was no significant
inconsistency between Young's testimony at the suppression
hearing and at trial, as Young was referring to two different
timetables: at the suppression hearing he explained what he had
found at the time he had discovered the weapon, while at trial he
explained what he had found since the suppression hearing. See
People v. Whitelow, 215 Ill. App. 3d 1, 5-7, 574 N.E.2d 253, 256-
57 (1991) (where defense counsel was not ineffective in not
introducing as substantive evidence police testimony from the
preliminary hearing that there was no damage to the victim's car,
where the officer testified at trial that he observed scratches
on victim's car. There was no significant inconsistency between
the two testimonies, where the officer viewed the car at two
different times to check for damage).
Defense counsel should have made some effort to inves-
tigate whether the firing pin was broken, to determine if the
"non-functioning state" exemption applied to defendant. However,
it is not clear from this record that she did not do that. It
appears defense counsel may have had information that led her to
believe the firing pin was not broken, or knew of the steps
Officer Young had taken since the suppression hearing to deter-
mine the firing pin was not broken, prompting her decision not to
impeach Young with his suppression hearing testimony.
We hold that defense counsel was ineffective only if
the gun's firing pin was broken. Other than defendant's state-
ment to Officer Young that the firing pin was broken, there is no
evidence to support the conclusion that in fact the firing pin
did not function. Unlike many questions that must be decided in
a criminal trial, the question of whether this firing pin is
broken may be answered with great certainty. Due to the lack of
evidence in this record as to the nonfunctioning of the firing
pin, we do not find ineffective assistance of counsel. However,
if evidence is developed establishing that the firing pin is in
fact broken, defendant could present that evidence by way of a
post-conviction petition.
For the foregoing reasons, we affirm the judgment of
the circuit court of Sangamon County.
Affirmed.
GREEN and STEIGMANN, JJ., concur.
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