People v. Murray

JUSTICE RAKOWSKI, concurring in part and dissenting in part:

While I agree with the majority opinion on all other issues, I would reverse and remand because I believe, for the following reasons, that the trial court erred in excluding the other prisoners’ (Lewis’ and Crawford’s) testimony.

Prior to the trial defendant sought to elicit the testimony of two witnesses who were in jail on unrelated murder charges. Both witnesses claimed that they had been beaten by Kato until they confessed to the crime. Thereafter the State made a motion in limine to prohibit the testimony of the inmates which the trial court granted. In its ruling, the trial court distinguished People v. Banks (1989), 192 Ill. App. 3d 986 , 549 N.E.2d 766 , which defendant cited as authority for calling the prison inmates as witnesses. The court stated that Banks’ claim of mistreatment was supported by the evidence while the defendant’s claim in the case sub judice was baseless and not only unsupported by the evidence but contradicted by it. The State argues that because defendant presented no credible evidence of mistreatment, the testimony of the jail inmates would only present a collateral issue which is too remote and speculative.

In People v. Banks, the defendant’s allegations of mistreatment were supported by the clinical findings of the physician who examined the defendant several days after he gave his confession statement to the assistant State’s Attorney. The physician testified at the suppression hearing that the defendant’s injuries were consistent with the mistreatment by the police which defendant described as well as the timing of its occurrence. The only evidence presented by the State was the police officers’ denials of coercion and the testimony of the assistant State’s Attorney that defendant did not say anything about mistreatment by the police. Citing People v. Wilson (1987), 116 Ill. 2d 29 , 506 N.E.2d 571 , the Banks court stated that where it was evident that a defendant had been injured while in police custody, the State was required to show by clear and convincing evidence that the injuries had not been inflicted as a means of producing defendant’s confession. (Banks, 192 Ill. App. 3d at 992 .) The court then held that the admission of defendant’s coerced confession was reversible error.

The defendant in Banks had also been precluded from presenting the testimony of a witness that claimed he had been subjected to very similar mistreatment by the same police officers and who also had corroborating medical evidence of his claims. (Banks, 192 Ill. App. 3d at 994 .) The Banks court held that not allowing the defendant to present this testimony was error and that the 13-month time lapse between defendant’s incident and that of the witness did not make it too remote to be relevant. Banks, 192 Ill. App. 3d at 994 .

In the case sub judice, defendant sought to introduce the testimony of Kenneth Crawford and Gregory Lewis that while in police custody they had also been beaten and kicked by Detective Kato. In the record, defendant included a summary of what their testimony would have contained. Crawford was arrested in June 1989. The allegations in his statement were that he was taken to an interview room where Kato said that Crawford had committed the murder and then kicked him in the chest, slapped him in the face and bent his finger back. Crawford was held in the interview room overnight and made a statement the next morning based on what Kato told him to say. Lewis was arrested in September 1988 by Kato and two other officers. He was handcuffed and placed in the back seat of the squad car with Kato and one other officer. Lewis acknowledged that he was asked about a murder and that when he denied any knowledge of one, Kato hit him twice in the testicles with a flashlight. At the police station, Lewis was kicked in the chest by Kato. He was placed in an interview room where Kato questioned him about a murder and told him he was lying and was going to tell what happened. Kato hit him on both sides of his head, kicked him in the stomach and continued to question him about a murder. Lewis then agreed to say what Kato told him to say.

The time lapse was nine months between the arrest of defendant and Lewis and 17 months in the case of Crawford, which was similar to the time lapse in the Banks case. Furthermore, as in Banks, the witnesses would have testified to physical abuse very much like that which defendant alleged and which was inflicted by the same police officer. Defendant also claimed that Kato slapped and punched him in the stomach, kicked him in the chest and stomach and hit him in the head.

It is true, as the majority opinion points out, that the defendant in Banks had corroborating medical evidence that he had been physically injured while in police custody as did the witness who alleged abuse by the same officer. However, while defendant in the case sub judice did not have medical evidence of the alleged abuse, defendant’s attorney requested a court order that defendant be examined at the hospital on January 21, 1988, which was one to two days after the alleged beatings. Although the court entered an order, defendant still had not been taken to the hospital on February 5, 1988. The trial court then granted a second order, but by that time 17 days had elapsed since the alleged mistreatment. In addition, defendant’s former attorney, Zuganelis, testified at the trial that he saw red and blue marks on defendant’s upper body during the time that defendant was still in police custody.

People v. Durr (1978), 58 Ill. App. 3d 525 , 374 N.E.2d 873 , which is the State’s case with the closest similarity to the case sub judice, is distinguishable because the time lapse between the two incidents was 21lz years and the allegations of abuse involved different officers. The State cites numerous other cases which appear to be factually dissimilar in support of its argument that the testimony of the inmates was irrelevant, collateral and would have confused the jury.

Whether what is offered as evidence is admitted or excluded depends upon whether it tends to make the question of guilt more or less probable. A trial court may reject offered evidence on the grounds that it is irrelevant and has little probative value due to its remoteness, uncertainty, or prejudicial nature. (People v. Ward (1984), 101 Ill. 2d 443, 455 , 463 N.E.2d 696 ; Banks, 192 Ill. App. 3d at 994 .) Although the evidence supporting the relevancy of the witnesses’ testimony is not as strong in the case sub judice as it was in Banks, I cannot say that the testimony defendant sought to present was irrelevant or of little probative value. Accordingly, it was error to exclude it. Because the confession constituted most of the evidence implicating defendant, the error cannot be said to be harmless.