# People v. Tabb

> Appellate Court of Illinois · June 14, 2007 · 374 Ill. App. 3d 680

URL: https://www.frixlaw.com/law-library/cases/9736578

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRIANDUS TABB, Defendant-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** June 14, 2007
- **Citations:** 374 Ill. App. 3d 680; 312 Ill. Dec. 470; 870 N.E.2d 914; 2007 Ill. App. LEXIS 641
- **Precedential status:** Published
- **Opinion:** Dissent by Neville
- **Judges:** Murphy, Neville, Campbell
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JUSTICE NEVILLE, dissenting:
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 R. 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) 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. It’s 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 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
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, and, 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 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).
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).
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 he. 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 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 609 2 and 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 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 “[virtually 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 affect his credibility but would not prejudice him for three reasons: (1) Brown was not a codefendant 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 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 Cadi-chon’s identification of Prittard as the shooter and Brown as a second offender. It should be noted (1) that Brown testified that he and Prit-tard 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. 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 at 12 .
I note that “ ‘ [cjross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.’ ” Blue, 205 Ill. 2d 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 denied a fair trial.
I assume that the attorney uses the acronym “PCS” to refer to a conviction for possession of a controlled substance. 720ILCS 570/402 (West 2004) (It is unlawful for any person to knowingly possess a controlled or counterfeit substance).
“(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.
(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).
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9736578. Public record. Not legal advice.