People v. Howard

523 N.E.2d 943, 169 Ill. App. 3d 536, 120 Ill. Dec. 32, 1988 Ill. App. LEXIS 592
Appellate Court of Illinois·Decided April 22, 1988·No. 86-0147·Published·Cited by 8 cases

Opinions

JUSTICE MURRAY

delivered the opinion of the court:

This is an appeal by defendant, Stanley Howard (Howard), from a conviction after a jury trial of two counts of armed robbery and sentence of 28 years.

On November 5, 1984, Howard was indicted on two counts of armed robbery and one count of attempted murder. The charges arose out of a March 14, 1983, incident involving two Chicago police officers. The entire matter, including the attempted murder charge, was tried before a jury. The jury was not able to reach a verdict on the attempted murder charge and the State nol-prossed1 that charge. On January 9, 1986, the trial court sentenced Howard to 28 years on the two charges. A notice of appeal was filed on January 14, 1986. The appellant’s brief was filed on December 18, 1986. The appellee’s brief was filed on August 20,1987.

On appeal the defendant asserts that his conviction and sentence must be overturned because of three alleged errors. Howard first charges that the testimony of one witness was inadmissible evidence of other crimes. He next claims that the court’s failure to grant him a continuance to perfect his impeachment of a witness was prejudicial error. He finally contends that his sixth amendment right to confront witnesses was lost when testimony concerning what Michael West said was used against him.

We affirm the conviction and sentence for the following reasons.

The defendant was on trial for the armed robbery of two off-duty police officers, Margaret Hall and Robert Hanley. The first State witness was Donita Washington, who testified that Howard robbed her. The trial court permitted the testimony over defendant’s objection.

As a general rule of law, evidence of other crimes is not admissible in a criminal case because of the high risk of prejudice. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) As with other rules of evidence, there are exceptions to this general rule. Among these exceptions is that evidence of other crimes is admissible if the evidence tends to show motive, intent, identity, absence of mistake or modus operandi. (People v. Kokoraleis (1987), 154 Ill. App. 3d 519, 507 N.E.2d 146.) If the evidence tends to show motive, etc., it is admissible even if it may also hint at a propensity to commit crime. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) The State contends Washington’s testimony proved identification and modus operandi and that it was admissible as an exception to the general rule. Defendant argues that it was not.

Modus operandi means “a pattern of working” and refers to a pattern of criminal behavior so distinct that separate crimes can be recognized as the work of the same person. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) The crimes involved need not be identical but must, nevertheless, possess distinctive features. (Kimbrough, 138 Ill. App. 3d 481, 485 N.E.2d 1292.) Finally, a trial court’s decision on the issue of modus operandi will be overturned only where an abuse of discretion occurs. (People v. Martin (1979), 80 Ill. App. 3d 281, 399 N.E.2d 265.) Based on these settled rules, this court cannot overturn the trial court’s conclusion that the testimony of Washington was admissible.

The evidence discloses that Officers Hanley and Hall were robbed as they were sitting in their car at 109th and Western in Chicago. After threatening to rape Hall and driving Hanley and Hall to a different location and struggling with Hall, defendant fled. Several shots were exchanged by Hanley and defendant during the escape. The time of the event was about 1 a.m. on March 14, 1983. On that same morning a witness, Kevin McMahon, testified that he was parked at 109th and Western, heard some shots fired, saw defendant go to the car behind him, point a gun at him and drive away in a 1978 or 1979 Monte Carlo.

Hanley’s, Hall’s and McMahon’s descriptions of their assailant was similar to Washington’s. Washington testified that she was robbed on March 13, 1983. She testified that she and her son were walking to their home on South Elizabeth. Defendant walked up to her with a gun as she got out of the car. He threatened to rape Washington. He drove her and her son to her mother’s apartment and took other things. He took Washington’s keys and drove off in her car with license plate No. ER 3042. Her car was a 1979 Monte Carlo.

The gun used in both situations was a small handgun. The description of the offender’s gun was similar, the offender in both cases threatened to rape the victims, and the offender used the same type of vehicle as in the March 13 and 14 robberies. These similarities were sufficient to sustain the trial court’s denial of the defendant’s motion in limine and later use of evidence with the instruction to consider the evidence only on the issue of defendant’s identification, purpose and design.

In his second point, defendant argues that if the testimony of Washington was admissible, he was denied a fair trial because the trial court denied him a continuance to secure a witness that could impeach Washington. Washington testified at trial that she would never forget the face of the man who stuck a gun at her side and identified defendant as the man who robbed her in a police lineup held on November 2, 1984. A police report indicated that at no time did Washington see her assailant’s face. The defense counsel moved for a continuance which the trial court denied.

The granting or denying of a continuance to obtain evidence is within the discretion of the trial court. (People v. Allgauer (1969), 114 Ill. App. 2d 405, 252 N.E.2d 671.) When reviewing the exercise of the trial court’s discretion in that regard, an appellate court must determine whether defendant acted diligently to obtain the evidence and whether the evidence would be material and might affect the outcome. People v. Tillman (1980), 82 Ill. App. 3d 430, 402 N.E.2d 825.

Finally, the court must determine whether defendant has been prejudiced in his right to a fair trial. (People v. Robinson (1973), 13 Ill. App. 3d 506, 510, 301 N.E.2d 55.) Weighing these factors, we cannot say that the trial court abused its discretion in denying the continuance: (1) the testimony was alleged impeaching testimony; (2) the defendant knew that Washington would testify, so her testimony was no surprise to defendant; (3) it does not appear that defendant acted diligently to get the absent witness’ impeaching testimony; (4) the witness was unavailable; (5) it does not appear that the impeaching testimony would have affected the outcome of the trial. Accordingly, this court cannot say the trial court abused its discretion in denying a continuance to enable Howard to obtain the alleged absent impeaching witness.

As his final point, defendant argues that Michael West’s testimony was used against him in violation of his constitutional right to confront and cross-examine witnesses.

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Howard, 523 N.E.2d 943, 169 Ill. App. 3d 536, 120 Ill. Dec. 32, 1988 Ill. App. LEXIS 592 (Ill. Ct. App. 1988).

523 N.E.2d 943 (People v. Howard) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Dodds
547 N.E.2d 523 (Appellate Court of Illinois, 1989)
People v. Robinson
541 N.E.2d 1336 (Appellate Court of Illinois, 1989)
People v. Williams
541 N.E.2d 1175 (Appellate Court of Illinois, 1989)
People v. McCarthy
536 N.E.2d 917 (Appellate Court of Illinois, 1989)
People v. Uzelac
534 N.E.2d 1250 (Appellate Court of Illinois, 1989)
People v. Howard
523 N.E.2d 943 (Appellate Court of Illinois, 1988)