Petition — Alarshi v. Illinois

ms

Supreme Coust, U. &

' FILED

No. 78-3 04 AUG 3 1978

“MICHAEL ROBAK, JR., CLERK

Iu the

Supreme Court of the United States

Ocrosper TeRM, 1978

AHMED BEN ALARSHI,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

ALLAN A. ACKERMAN

ACKERMAN, DURKIN & EGAN

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

332-2863

KUGLER, DE LEO & D’ARCO, LTD.

100 North LaSalle Street

Chicago, Illinois 60602

263-3020

Attorneys for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

PAGE

Genk SE: eo... OS Sr 1

RR an nie STEEL I 2

I a... 2

Constitutional Provisions and Statutes involved ........ 3

ge Bee 3

Reasons for cc cneecs 15

ETI SA AALS ER 29

Appendix A—1-7—Opinion below ~.................. TRE App. 1

Appendix B—III.S.Ct. order denying leave to appeal App. 7

Appendix C—Il. Pattern Jury Instruction $3.11 —..App. 7

Appendix D—Joint Chgo, Police Dept. Statement ....App. 8

Appendix E—Ill. App. Ct. Order staying mandate

pending disposition of this petition ...... App. 10

AUTHORITIES CITED

Cases

Benson v. U.S., 402 F.2d 576 (9th, 1968) 0000... 25, 26

Bridges v. Wixon, 326 US 135 (1945) 200... 24, 26

Bruten v. US., 391 US 123 (1968) —.......................... 16,18

California v. Green, 399 US 149 (1970) —..0..... 18, 19

Chambers v. Mississippi, 410 US 284 (1975) -......... 19, 20

Douglas v. Alabama, 380 US 415 (1965) 20... 3,15

Dutton v. Evans, 400 US 74 (1970) eee. 19

il

PAGE

Herring v. New York, 422 US 853 (1975) .................... 28

Mattox v. U.S., 156 US 237 (1895) _ .............-............. 20

People of the State of Illinois v. Alarshi, 57 Ill. App.

I aaa ake 1

Phillips v. Wyrick, 558 F.2d 489 (8th, 1977) ~......... 24

Pointer v. Texas, 380 US 400 (1965) 0002. 15, 20

Roberts v. Russell, 392 US 293 (1968) . ...................... 19

Taylor v. Kentucky, —— US ——, 98 S.Ct. 1930

INR sends mecsadiadeed coax paneer aoeetdn cc taniaeactaatatnniceaaiacninnneina aiid 3, 28

U.S. v. Gregory, 472 F.2d 484 (Sth, 1973) -.2.2.. 26

U.S. v. Morlang, 531 F.2d 183 (4th, 1975) ........... 22, 23, 24

U.S. v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) .... 23

U.S. v. West, 574 F.2d 1131 (4th, 1978) —22 ww... 20

Constitutional Provisions, Statutes and Other Authorities

United States Constitution, 5th Amendment ............... 3

United States Constitution, 6th Amendment ....2, 3, 15, 18,

20, 28

. United States Constitution, 14th Amendment ................ 3, 29

OS Ts 6 Re Ge eke erties 2

Illinois Revised Stat, ch. 38 § 12-4 (1973) 00... 3, 4

Illinois Pattern Jury Instruction 3.11 -.000 ee... 3

Rule 22 (1), Rules of the Supreme Court ~...2 22220... 2

ks GERD e) FORGONE 20

In the

Supreme Court of the United Siates

Ocroser Term, 1978

No.

AHMED BEN ALARSHI,

Petitioner.

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

The petitioner, Ahmed Ben Alarshi, respectfully prays

that a writ of certiorari issue to review the judgment of

the Appellate Court of Illinois, First District, First Divi-

sion, entered on February 6, 1978.

OPINION BELOW

The opinion of the Appellate Court of Illinois affirming

petitioner’s conviction was filed on February 6, 1978 and

is reported as People of the State of Illinois v. Alarshi,

57 Ill.App.3d 464, 373 N.E.2d 516 (1978). The petitioner

2

sought, pursuant to Illinois Supreme Court Rules, a peti-

tion for leave to appeal to the Illinois Supreme Court.

The order of the Illinois Supreme Court denying discre-

tionary review was entered on May 26, 1978. The man-

date calling for petitioner to be remanded to custody has

been stayed pending disposition of this petition. Copies

of the above-mentioned opinion and the order denying the

petition for leave to appeal to the Illinois Supreme Court

are appended to this Petition (Grp. A, 1-7; App. B, infra).

JURISDICTION

The opinion of the Appellate Court of Illinois was en-

tered on February 6, 1978. Petitioner’s timely petition for

discretionary review in the Supreme Court of Illinois was

denied on May 26, 1978. The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3). This petition has been

filed within 90 days of the final decision from the highest

Court in the State of Illinois (Appendix B, infra). In ac-

cordance with Rule 22(1) of this Court this petition is

being filed within 90 days of the entry of the denial of

discretionary review by the Illinois Supreme Court (App.

B, infra). The mandate staying the execution of the sen-

tence was stayed on July 17, 1978 by a Justice of the Illinois

Appellate Court pending disposition of the instant petition

(App. E, infra).

QUESTIONS PRESENTED

1. Whether the Sixth Amendments right of an accused

to ‘‘confrontation’’ was violated where the trial jury...

was allowed to hear (over strenuous objection) the festt-

mony of a non-appearing eye-witness, through the lips of an

unsworn prosecutor under the guise of impeachment?

Stated otherwise, does this case fall within the parameters

3

of confrontation violation as set forth by this Court in

Douglas v. Alabama, 380 U.S, 415 (1965) ?

(a) Was the failure to give a ‘‘limiting instruction’’

prejudicial error where the proffered instruction involved

the testimony (?) of the non-trial eye-witness?

2. Whether, in combination, the ‘‘limitation’’ by the

trial court of petitioner’s closing argument (as relating

to the non-trial eye-witness) and the grossly improper

closing argument of the prosecution combined to deny

the petitioner his constitutional protection to a fair and

impartial jury trial??

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendments V, VI, XIV.

Statutes and Illinois Pattern Jury Instruction

Illinois Rev. Stat. Ch. 38 §12-4 (1973).

Illinois Pattern Jury Instruction, §3.11 (Appendix ‘‘C’’,

infra).

STATEMENT OF THE CASE

(A) |

June 13, 1974

A saloon. Go-go dancers. The P.L.O. These are the

ingredients, which combined, to produce the event, indict-

ment, trial and conviction.

On and prior to June 13, 1974 the petitioner was the

lessee-manager of a Chicago go-go joint (Tr. 313). On the

night in question he and others were in the saloon when

1Cf., Taylor v. Kentucky, ........ ka , 98 S.Ct. 1930 at 1934,

n. 11 and 1936 n. 14. In Taylor prosecutorial misconduct during

closing argument was not raised as an issue (id. at 1936, n. 14).

4

the victim entered (Tr. 305; 330-334). According to the

version of events supplied by the victim there was a dis-

agreement, and absent any provocation, the petitioner took

a handgun and shot the victim (Tr. 219, 220). According

to the petitioner, he not only did not have a handgun, but

he did not shoot the victim (Tr. 307-310; 322-323). The

petitioner claimed at trial that the victim was selling P.L.O.

sponsored tickets (Tr. 303-305). Further, on the night of

the shooting, the petitioner paid the victim $10.00 for one

of the tickets earlier taken by the petitioner from the

victim (Tr. 303-305).

Naturally, an added ingredient is the presence at the

shooting scene of the inevitable ‘‘go-go’’ dancers (Tr. 131-

137). After the event (the shooting) a joint statement of

the two (2) go-go dancers was taken by a Chicago police

officer (Tr. 176-178). No gun was recovered (Tr. 173).

In November, 1974 the petitioner was charged in a two (2)

count indictment alleging that he committed the offense

of aggravated battery in violation of Ill.Rev.Stat., Ch. 38,

§12-4 (Ct. 1) and aggravated battery with a deadly weapon

(Ct. 2).?

(B)

The Trial

(Jury)

The victim testified that the petitioner shot him (Tr. 218-

220). The shooting may have had something to do with

2In pertinent part, the statute under which petitioner was charged

reads as follows:

12-4. § 12-4. Aggravated Battery.) (a) A person who,

in committing a battery, intentionally or knowingly causes great

bodily harm, or permanent disability or disfigurement commits

aggravated battery.

(b) A person who, in committing a battery either:

(1) Uses a deadly weapon; * * *

5

a problem as between the petitioner and one of the go-go

dancers (Tr. 210-212, victim’s version). No question is

or was raised as to the simple underlying fact that the

victim was shot in the saloon on June 13, 1974. Nor was

any question raised about the fact that he spent time in the

hospital and suffered certain injuries and later filed a sub-

stantial civil law suit against the petitioner and others

(Tr. 249-250).

During the trial one of the go-go dancers testified for

the prosecution. Tne other was apparently unavailable for

trial. Various inconsistencies were the subject of cross-

examination. An example is (was) whether there were

one or two (2) gun shots (Tr. 128). The ‘‘joint statement’’

given to the police by the go-go dancers, after the event,

was kept from the trial jury, albeit they requested same

and the defense urged that the statement be given the trial

jury during their deliberations (Tr. 501-506). The im-

portance of the joint statement and its ‘‘TRIAL-USEK”’

is the sine qua non of this petition.

Ms. Jean Watson (a former go-go dancer) testified for

the prosecution. In pertinent part, she testified that both

she and Cathy Green were working on the night in ques-

tion at the saloon (Tr. 118). She testified that the peti-

tioner and a blond woman had an argument (Tr. 117-118).

At about 11:00 p.m. the victim entered the saloon (Tr.

118-119). Ms. Watson heard two (2) gun shots about 10

miiiutes apart (Tr. 120). Ms. Watson (according to her

trial testimony) saw the petitioner shoot the victim (Tr.

121). This was the second gun shot Ms. Watson heard

(Tr. 121-22). According to Ms. Watson’s trial testimony

(direct examination) after the shooting the petitioner had

a gun in his hand (Tr. 122). Shortly thereafter the police

arrived and she gave the police a written statement as to

6

what happened (Tr. 123). The petitioner, represented

by the Cook County Public Defender, then cross-examined

this witness. Under cross examination she agreed that she

had declined to be interviewed by defense counsel and

that she had known the victim prior to the date of the

shooting (Tr. 124-126). During the further cross-exami-

nation of Ms. Watson the joint statement given to the

police shortly after the shooting is introduced (Tr. 129).’

Ms. Watson agrees that there is nothing in the statement

about any shot being fired prior to the time the victim is

shot (Tr. 129-30). The mysterious blond haired girl who

was in the bar and talking to the petitioner prior to the

shooting had been seen by this Witness many times. In

fact, the blond haired girl (the missing mystery lady)

actually worked in the same go-go saloon (Tr. 131-32).‘

After the shooting ‘the blond haired lady left the tavern

(Tr. 135, 186). Further cross-examination revealed that

the joint statement as between Ms. Watson and Ms. Green®

was signed by both of them and, to the best of the knowl-

edge of this witness was accurate (Tr. 142, 154-165). At

trial Ms. Watson testified she did not know whether the

petitioner called the police although in the statement given

to the police shortly after the event she claims the peti-

tioner called the police (Tr. 142-143). The statement fur-

ther shows that the petitioner did not have a weapon in

his hand shortly after the shooting, although her trial

3 Marked during Trial as Defense Exhibit +1 for identification.

This joint statement is reproduced in the trial record at R. 15...

and is Appendix “D” to this Petition.

4The “blond haired girl” was not available at the time of trial.

Thus, there was two (2) missing eye-witnesses.

5 Likewise, a non-trial witness.

.

eS ee err

ee

7

testimony is to the contrary (Tr. 143 vs. 121). Ms. Watson

made no effort to assist the victim after the shooting (Tr.

145).°

During the re-direct examination, the prosecution com-

mences to review the ‘‘Joint Statement’? (Tr. 154

155). The prosecution brings out that the joint statement

carries with it ‘‘Q’’ meaning question and ‘‘W”’ meaning

Ms. Watson and ‘‘G’’ meaning Ms. Green.”

Over objection, the prosecution, while attempting to

rehabilitate Ms. Watson read portions of the statement to

the jury, haec verba. Further, over objection, the prosecu-

tion is allowed to read the following to the trial jury:

‘*Q. Now, I would ask you to examine the answer to

that fourth question and tell me what letter precedes

the answer to the fourth question?

a. @.

G. Now, Ms. Watson, I would ask you if you

recall Investigator Phelan asking this question and

this answer preceded on Defendant’s Exhibit No. 1,

by the letter G.

Do you understand the question so far?

I am asking you if you heard Phelan with the man,

with the gray hair asking this question to Cathy Green,

if you recall Cathy Green’s answer?

A. I understand.

Q. What happened then, the answer is preceded

by a G, El reached under the bar and I saw him reach

out with an object in his hand and I heard a loud noise

and saw Freddie fall down to the floor. El then ran

out of the bar to the front door and he stepped out

and fired some shots outside.

®In closing argument the prosecution argued that the petitioner

made no effort to assist the victim following the shooting (Tr. 432).

The defense case was clearly to the contrary (Tr. 332-333).

™Once again, we respectfully remind this Court that Ms. Green

did not’ testify at this trial.

8

There were about four other people in the place who

ran out, then El ran to a back room, walked wm, re-

turned from the room and called the police.

Do you recall Cathy Green making that statement to

Investigator Phelan?*

A. Yes, she did,

Q. Now, Mr. Thompson pointed out this following

question, at the next to last, on this, Defendant’s Ex-

hibit No. 2.

Question: Each of you have responded to a part

of this statement.

Do each of you agree that the account given by the

other is accurate?

The answer is preceded by a W, and it is ‘‘Yes.’’

Answer: (Preceded by a G for Ms. Green) Yes.

Do you recall that sequence of events?

A. Yes, sir,

Q. So, to your knowledge at the time this state-

ment was given everything in here was true, is that

correct?

A. Yes, sir.

Q. Now, as long as you have known Cathy Green,

have you ever known her to lie to you?

A. No.

So when she said something was true, did you

believe that that was accurate?

A. I had no reason not to. (Tr. 162-4)°®

The re-direct examination of Ms. Watson indicates that

she has no personal knowledge of that which Ms. Green

told the police but she believed Ms. Green (Tr. 164-165).

A prosecution witness was Inv. Phelan of the Chicago

Police Department (Tr. 167). On June 13, 1974 he inves-

8 Throughout the trial the petitioner was referred to as “EL”.

® This line of questioning was the subject of specific objection ;

same being overruled by the trial judge (Tr. 157-60).

9

tigated this incident and, inter alia, spoke to the petitioner.

He questioned the petitioner and the petitioner told him

that:

A. He said that he didn’t know.

He said that he had been tending bar and that a

friend of this man who was shot was walking towards

the front door when the front door was opened and a

shot rang out from outside and he saw Mr. De Mellow

fall to the floor. (Tr. 171)

Investigator Phelan, as part of his investigation not

only interviewed Ms. Watson and Ms. Green but two men

who were at the saloon during the investigation.” Inv.

Phelan spoke to the victim at the hospital on the same

morning and the victim did not identify the petitioner as

the shooter (Tr. 179-80). The investigation revealed no

handgun at the saloon and that as far as this investigator

was able to determine only one shot had been fired in the

tavern (Tr. 182).

The victim, Freddie DeMellow (a/k/a Eloeuir Fuad)

testified that he was visiting the saloon on the night in

question at the request of the petitioner. According to

DeMellow (the victim) he would assist, from time to time,

the petitioner with translations from Arabic to English

(Tr. 205). DeMellow testified he was at the tavern be-

cause the petitioner had requested that he go there to

translate some papers from English (Tr. 207). Once at

the saloon petitioner served the victim a drink (Tr. 211)

and then he heard the petitioner state something to the

effect that he had an account to settle with a woman who

10 Messrs. Mekler and Weiland (Tr. 172). Both Mekler and

Weiland testified for the defense.

10

was in the bar (Tr. 211-212). He had this conversation

with the petitioner in Arabic. After a short period of

time the petitioner pulled out a gun and fired a shot into

the ground stating something about ‘‘the Fourth of July’’

(Tr. 214). About 20 to 25 minutes passed during which

time DeMellow both called a cab for himself (??) and saw

the mysterious blond lady standing near the bar (Tr. 217).

Thereafter a horn honked from outside and the blond lady

took off. At this point petitioner had a gun (Tr. 218).

As the blond girl (heretofore described as the mystery

lady) ran by the victim he said good night to her and he

was shot by the petitioner (Tr. 219-20). The post-hearing

events included the petitioner telling the victim he didn’t

shoot him (in Arabic) and some few days later the peti-

tioner came to the hospital and said ‘‘forgive me’’ and the

petitioner promised to pay the doctor and hospital bills

(Tr. 227). The victim denied having anything to do with

the P.L.O. and further denied attempting to sell tickets to

a P.L.O. event (or banquet) to the petitioner. Finally the

victim agrees that he has, on file, a substantial civil law

suit regarding th events involving this shooting (Tr. 249-

50).

FOR THE DEFENSE

Saha Salsh testifies that on the date in questien he

was living above the tavern. On the night in question he

was in the tavern, drinking beer and at no time did he

see a gun in the hand of the petitioner (Tr. 267). He would

go into the tavern from time to time to watch the go-go

dancers (Tr. 277). This witness is no friend of the peti-

tioner (Tr. 279-80).

The petitioner testified that he was the manager of the

saloon on June 13, 1974 (Tr. 313). That the victim had

attempted to sell him certain tickets to PLO events and

11

that on the night in question he owed the victim $10 for

one of the tickets (Tr. 303-5). He did not call or invite

the victim to the tavern. He did not see the shooting and

he did not have a gun in the tavern and he did not shoot

the victim; when he saw the victim he called the police

(Tr. 307-10). The thrust of the cross-examination of the

petitioner relates to weapons. The petitioner denies ever

having a gun (Tr. 322-23). The petitioner denies he ever

asked the victim for any help. The victim was attempting

to sell tickets or ads for the PLO (Tr. 328). He did hear

the victim say help me and the petitioner called the police

(Tr. 332-33).

After the petitioner was arrested he visited the victim at

the hospital (Tr. 345). The petitioner denies offering to

pay any medical bills but agrees that he did tell the victim

that he would take care of the victim’s children because he

felt sorry for the victim and the petitioner was able to take

eare of the children (Tr, 346). During the hospital visit

THE VICTIM DID NOT TELL THE PETITIONER

THAT HE (THE PETITIONER) HAD SHOT THE

VICTIM (Tr. 378-79).™

The evidence ended. The Court reviewed the proposed

instructions and declined to instruct on ‘‘inconsistent state-

ments’’ and further restricted, in limine, the defense from

arguing impeachment of Ms. Watson from the joint police

statement and answers of Ms. Green (Tr. 400-407).

11 The PLO banquet ticket that the petitioner said the victim was

selling is entered into evidence as defense Exhibit #2 (Tr. 385).

% The “joint police statement” of Ms. Green and Watson is ap-

pended as Appendix D, infra. The closing argument aspect of this

petition is presented in question 2, infra, pp. 27-29.

12

THE STATE’S CLOSING ARGUMENT

In part, some of the overwhelmingly prejudicial com-

ments made by the prosecution during their closing argu-

ment included the following:

Subsequently you heard testimony that a man did

or somebody did come from outside and shout cab.

And what happened, then? Once this blond woman

knew that a cab was outside, despite the fact it wasn’t

called for her—

Mr. Moore: Objection. There is no testimony to

that effect.

The Court: Sustained. (Tr. 427)

& * *

So there were two people who were about to leave.

Mr. Alarshi, the man with the now frayed ego, but

a gun in his hand, saw what happened to be the blond

going out the door in the company of either Mr. De-

mello or the two young gentlemen who testified before

you that said they came in the tavern. They saw Mr.

Alarshi admit their—

Mr. Moore: Objection to that, your Honor. That

was not the testimony. Absolutely not.

The Court: Objection sustained. (Tr. 428)

* ae *

But you heard them say that the man behind the

bar said to them get out of here and get out fast. Now,

why did he say that? We don’t completely know

whether he had said that because he thought the young

men were going to become involved with the blond or

there was somebody else. He knew he was going to

13

do a—he didn’t want anybody in the tavern. He didn’t

want any witnesses,

Mr. Franklin: Your Honor, 1 object to that. There

is no statement. There was never a clear statement.

That was the only testimony Counsel recalls.

The Court: Objection sustained. (Tr. 429)

& * *

And we submit to you that if you think otherwise,

then we’re in big trouble. So we ask you to consider

that if the law is not enforced in this case, what do

we have? We have a break down. We have a failure.

We have a system which doesn’t enforce the laws.

Mr. Moore: Objection to the reference of other

cases or the system, in general.

The decision here relates to this case and this case

only.

The Court: That objection will be sustained. (Tr.

442)

* e *

Defense Exhibit No. 2 will go with you to the jury

room. It’s unimportant. It means nothing. The

PLO means nothing. Ahmed Ben Alarshi, an Arab

is on trial.

Now, you have heard from Mr. Franklin, from an

impossible and unbiased defense witness Mr. Salah.

Well, I don’t think, ladies and gentlemen, if he’s im-

partial and unbiased, I don’t believe it. A man is a

security guard. He’s gotten there at precisely 11:30.

And he’s also an Arab. He’s been to the Cafe Bom-

bay. Perhaps the gun is up in his room right next

door to the Three Star Hellenic Cafe.

14.

Mr. Moore: Objection.

The Court: Sustained. (Tr. 471)**

During the jury deliberation the trial judge received a

written note requesting the joint statement of Ms. Watson

and Ms. Green as given, on the night of the event, to the

Chicago police investigator, Phelan (Tr. 501-2). The

defense took the position that since the jury requested it

... ‘fthat they have it’’ (Tr. 503). The trial judge de-

clines to give the trial jury the statement (Tr. 504-6).*

18 The gun was not recovered. The prosecution is now accusing

a defense witness . . . absent a shred of evidence . . . of “perhaps”

possessing the weapon used in the shooting (Tr. 471). To repro-

duce the entirety of the “improper” closing argument by the prosecu-

tion would require this petitioner to exceed ordinary length. It may

well be that in this Court’s discretion a brief in support of this

petition will further delineate the prosecution transgressions.

Defense Ex. +2 was a PLO banquet ticket sold to the petitioner

by the victim.

14The jury retired to deliberate at 4:28 p.m. on September 21,

1976 (Tr. 500, 506). The note requesting the Statement was sent at

7:30 p.m. and the jury returned their guilty verdict at 9:22 p.m.

(Tr. 506, 509).

15

REASONS FOR GRANTING THE WRIT

QUESTIONS 1 and 1a (combined)

In Douglas v. Alabama, 380 U.S. 415 (1965) this Court

ruled that the confrontation clause of the Sixth Amend-

ment was applicable to the states (Douglas, at 418). In

Douglas this Court reversed a similar state conviction

(assault with intent to commit murder) because the pros-

ecution was allowed to read to the trial jury the confes-

sion of an alleged eye-witness who, when called to testify,

invoked a testimonial privilege (380 U.S. 419-420). In

Douglas an eye-witness, already convicted, was Loyd.

Loyd had given a statement that Douglas fired the shotgun

in that particular case and the statement constituted direct

evidence against Douglas (id. at 419, 420). When called

as a trial witness Loyd refused to testify and the prose-

eutor read Loyd’s statement to the trial jury (id., 418-20).

This Court reversed the Douglas conviction and sentence.

Mr. Justice Stewart concurring, put the proposition of law

in a constitutional frame as follows:

The Court says that what happened in this case vio-

lated the petitioner’s ‘‘rights under the Confrontation

Clause of the Sixth Amendment as applied to the

States.’’ I concur in the Court’s judgment, because I

think the petitioner was deprived of his liberty with-

out due process of law in violation of the Fourteenth

Amendment. This difference in view is, of course,

far more than a matter of mere semantics. See my

opinion concurring in the result in Pointer v. Tevas,

380 U.S., p. 409. (380 U.S. at 423)

16

Petitioner, in this case, was convicted .. . at least in

part, by virtue of the trial jury having the benefit of the

unsworn statement of a non-trial eye-witness. That non-

trial, eye-witness told the trial jury .. . through the lips

of the prosecutor... that the petitioner pulled out a gun

(object) and, shot the victim. Further, the trial jury was

also told by this non-trial witness that after the shooting

the petitioner ran out of the bar ‘‘and fired some shots

outside”’ (Cf., Statement of Case, pp. 3-10, imfra).”

In 1968 this Court ruled that Bruton was entitled to a

new trial based on the admission of his non-testifying co-

defendant’s confession ... where that confession implicated

Bruton during their joint jury trial. In pertinent part,

while reversing, this Court put the case in the context of

constitutional terms, stating:

Before discussing this, we pause to observe that in

Pointer v. State of Texas, 380 U.S. 400, we confirmed

‘that the right of cross-exainination is included in the

right of an accused in a criminal case to confront the

witnesses against him’’ secured by the Sixth Amend-

ment, id., at 404, 85 S.Ct., at 1068; ‘‘a major reason

underlying the constitutional confrontation rule is to

give a defendant charged with crime an opportunity to

cross-examine the witnesses against him.’’ Id., at

406-407, 85 S.Ct., at 1069.

We applied Pointer in Douglas v. State of Alabama,

380 U.S. 415, in circumstances analogous to those in

the present case. There two persons, Loyd and Doug-

las, accused of assault with intent to murder, were

tried separately. Loyd was tried first and found

guilty. At Douglas’ trial the State called Loyd as a

witness against him. An appeal was pending from

18 The trial record makes precious little reference as to why Ms.

Cathy Green (the non-trial-eye-witness) was not available for trial.

17

Loyd’s conviction and Loyd invoked the privilege

against self-incrimination and refused to answer any

questions. The prosceution was permitted to treat

Loyd as a hostile witness. Under the guise of re-

freshing Loyd’s recollection the prosecutor questioned

Loyd by asking him to confirm or deny statements read

by the prosecutor from a document purported to be

Loyd’s confession. These statements inculpated

Douglas in the crime. We held that Douglas’ inability

to cross-examine Loyd denied Douglas ‘‘the right of

cross-eramination secured by the Confrontation

Clause.’’ 380 U.S., at 419, 85 S.Ct., at 1077. We noted

that ‘‘effective confrontation of Loyd was possible

only if Loyd affirmed the statement as his. However,

Lovd did not do so, but relied on his privilege to

refuse to answer.’’ Id., at 420, 85 S.Ct., at 1077. The

risk of prejudice in petitioner’s case was even more

serious than in Douglas. In Douglas we said, ‘‘ Al-

though the Solicitor’s reading of Loyd’s alleged state-

ment, and Loyd’s refusals to answer, were not tech-

nically testimony, the Solicitor’s reading may well

have been the equivalent in the jury’s mind of testi-

mony that Loyd in fact made the statement; and Loyd’s

reliance upon the privilege created a situation in which

the jury might improperly infer both that the state-

ment had been made and that it was true.’’ Id., at

419, 85 S.Ct., at 1077. Here Evans’ oral confessions

were in fact testified to, and were therefore actually

in evidence. That testimony was legitimate evidence

against Evans and to that extent was properly before

the jury during its deliberations. Even greater, then,

was the likelihood that the jury would believe Evans

made the statements and that they were true—not

just the self-incriminating portions but those im-

plicating petitioner as well. Plainly, the introduction

of Evans’ confession added substantial, perhaps even

eritical, weight to the Government’s case in a form

not subject to cross-examination, since Evans did not

18

take the stand. Petitioner thus was denied his consti-

tutional right of confrontation. (391 U.S. at 126-128).’°

California v. Green, 399 U.S. 149 (1970) is not to the

contrary albeit this Court found no confrontation problem

while vacating the State Court finding in favor of Green.

In California v. Green, this Court held that where the

declarant (in a non-jury trial) was available for con-

frontation and cross-examination both at a preliminary

hearing and at the later bench trial, then the use of the

preliminary hearing testimony of the declarant was not

violative of the Sixth Amendment. This Court, while

finding no Sixth Amendment violation put the proposition

as follows:

Finally, we note that none of our decisions interpret-

ing the Confrontation Clause requires excluding the

out-of-court statements of a witness who is available

and testifying at trial. The concern of most of our cases

has been focused on precisely the opposite situation—

situations where statements have been admitted im

the absence of the declarant and without any chance

to cross-examine him at trial. These situations have

arisen through application of a number of traditional

‘‘exceptions’’ to the hearsay rule, which permit the

introduction of evidence despite the absence of the

declarant usually on the theory that the evidence

possesses other indicia of ‘‘reliability’’ and is incapa-

ble of being admitted, despite good-faith efforts of the

State, in any way that will secure—confrontation with

16 Tn Bruton there was a strong “limiting” instruction. This Court

found that the limiting instruction was not acceptable or adequate

substitute for Bruton’s right of “cross-examination” (391 U.S. at

137). Mr. Justice Stewart concurring. In the case at bar the sole

offered limiting instruction was not given to the jury (Tr. 400-07;

App. C, infra).

—

19

the declarant. (399 U.S. at 161, 162; emphasis sup-

plied; ft.nt. omtd.)?7

Next came Dutton. In Dutton v. Evans, 400 U.S. 74

(1970) this Court reversed the granting of habeas relief

where the question before the Court related to the testi-

mony of an inmate (Shaw) as to what an accomplice to

the Evans’ murder had said to Shaw about Evans (400

U.S. at 77-79). In this Court the question became, inter

alia, one of the right. to confrontation albeit, there was no

question that Shaw (the declarant) was both a trial wit-

ness and the subject of vigorous and complete cross-ex-

amination.'$

Chambers vy. Mississippi, 410 U.S. 284 (1973) provides

additional insight into ‘‘confrontation and cross-examina-

tion’’. In Chambers McDonald had confessed to the mur-

der for which Chambers had been tried and convicted.

McDonald was called as a trial witness and admitted his

earlier confession. The prosecution cross-examined and

17In Green the trial was without a jury and therefore the con-

cept of limiting instructions was obviated.

18 At 400 U.S. 87 n. 18, this Court notes that the cross-examination

of Shaw was such as to cast serious doubt on Shaw’s credibility.

Williams was the co-indictee of Evans and his alleged conversation

with Shaw was the subject of the decision in Dutton v. Evans, ante,

(Cf., dissenting opinions of Justices Marshall, Black, Douglas and

Brennan . . . 400 U.S. 100-111). The dissenting Justices opted

for a new trial under the principles of both Douglas v. Alabama,

and Pointer v. Texas, (400 U.S. at 102-111). THERE CAN BE

LITTLE QUESTION THAT THE BRUTON DOCTRINE IS

APPLICABLE TO THE STATES AND THUS TO THE

QUESTIONS POSED IN THE INSTANT PETITION, Roberts

v. Russell, 392 U.S. 293 (1968).

20

McDonald repudiated his earlier confession (id. at 291).

Chambers attempted to proffer three (3) trial witnesses

who would have testified as to McDonald’s original con-

fession and the circumstances under which it was given

(id. at 292, 293). This Court reversed the conviction

finding inter alia:

Chambers was denied an opportunity to subject

McDonald’s damning repudiation and alibi to cross-

examination. He was not allowed to test the witness’

recollection, to probe into the details of his alibi, or

to ‘‘sift’’ his conscience so that the jury might judge

for itself whether McDonald’s testimony was worthy

of belief. Mattox v. United States, 156 U.S. 2387, 242-

243 (1895). Vhe right of cross-examination is more

than a desirable rule of trial procedure. It is implicit

in the constitutional right of confrontation, and helps

assure the ‘‘accuracy of the truth-determining proc-

ess.’’ Dutton v, Evans, 400 U.S, 74, 89 (1970); Bruton

v. United States, 391 U.S. 123. It is, indeed, ‘‘an es-

sential and fundamental requirement for the kind of

fair trial which is this country’s constitutional goal.’’

Pointer v. Texas, 380 U.S. 400, 405 (1965). (410 U.S.

at 295)

The Circuits are certainly not im accord. In U.S, vy.

West, 574 F.2d 1131 (4th Cir., 1978) the Court affirmed

a federal narcotic conviction finding that the use of prior

sworn grand jury testimony did not offend either the

Sixth Amendment or Rule 804(b)(5) of the Fed.R.Evid.

The grand jury testimony that was introduced as evidence

was that of a slain prosecution witness.

Circuit Judge Widener dissented. In part, Judge Wide-

ner’s vigorous dissent urged the following:

I raise again the objections I voiced in the dissent in

United States v. Payne, 492 F.2d 449 (4th Cir, 1974).

21

Here, as in that decision, the majority has confused

the issues of the admissibility of hearsay and the right

of a criminal defendant to be confronted by his ac-

cusers. While the two different rules of law may

‘*stem from the same roots,’’ they are by no means

identical, but are closely akin. Dutton v. Evans, 400

U.S. 74, at p. 86, 91 S.Ct. 210, 27 L.Eid.2d 213 (1970).

The majority’s treatment of the confrontation clause

again, as in Payne, reduces the constitutional provi-

sion to the status of a mere rule of evidence when, in

fact, the clause was intended to regulate the procedure

of a criminal trial by compelling the presence of the

accuser before the jury and the defendant. The court

concludes that because the grand jury testimony is re-

liable, the confrontation clause is not violated; that

because the circumstances surrounding the testimony,

including the corroboration of Brown’s assertions by

the federal agents, indicate that Brown may well have

heen truthful, the jury could assess his veracity in his

absence, At root, then, of the majority’s analysis is

its conclusion that Brown indeed spoke the truth, that

his testimony was reliable, being corroborated, and

that, the jury having been presented with sufficient

indications of Brown’s sincerity, the defendant’s right

of confrontation was not abridged.

This analysis is, however, misplaced. While it has

been said ‘‘the mission of the Confrontation Clause

is to advance a practical concern for the accuracy of

the truth determining process in criminal trials by

assuring that ‘the trier of fact [has] a satisfactory

basis for evaluating the truth of the prior statement,’

California v. Greene,’’ Dutton v. Evans, 400 U.S. at

p. 89, 91 S.Ct. at p. 220, the whole question is not, as

the majority treats it, whether the testimony is in

fact truthful; rather, the issue is whether there has

been such ‘‘adequate ‘confrontation’’’ as to satisfy

22

the requirements of the Constitution’s Sixth Amend-

ment. Dutton, 400 U.S. at p. 97, 91 S.Ct, 210 (Harlan,

J., concurring). Hence, we should not be lured by the

possible reliability of out-of-court statements, im-

portant as that is in the consideration of the problem

as a rule of evidence, away from the ultimate con-

stitutional prescription, which is the regulation of

trial procedure.

e * @

1. The opinion refers to the consideration of admis-

sion under Federal Rule of Evidence 803(24) which

is identical in text to 804(b)(5) upon which rests the

majority’s decision to allow the admission of the

hearsay grand jury testimony into evidence. I see

no difference of moment here in the equivalent

guarantees of trustworthiness under the two rules

just cited.

2. ‘It seems apparent that the Sixth Amendment’s

Confrontation Clause and the evidentiary hearsay

rule stem from the same roots. But this court has

never equated the two, and we decline to do so now,’’

Dutton, at p. 86, 91 S.Ct. at p. 218 (footnotes omit-

ted).

3. The majority follows the path of the plurality

opinion in Dutton which also looked to indicia of

reliability rather than whether the defendant had

been confronted. (574 F.2d 1131 at 1139)

In an earlier case from the same Circuit, U.S. v. Mor-

lang, 531 F.2d 183 (4th Cir., 1975) the Court reversed cer-

tain federal bribery convictions finding prejudicial error

in the use of earlier grand jury testimony being read to a

government witness, under the guise of refreshing that

witness’ recollection (id. at 190-191). As to that simple

issue (using the witness’ grand jury testimony to allegedly

impeach the witness) the Morlang Court stated:

23

A contrary holding would permit a party to sub-

stitute the prior statement of a witness for his actual

testimony. The Supreme Court las considered a

similar fact situation and, while holding that the grand

jury testimony was used simply to refresh the recol-

lection of the witness, stated ‘‘. . . there would be

error where under the pretext of refreshing a witness’

recollection the prior testimony was introduced as

evidence.’’ United States v. Socony-Vacuum Oil Co.,

310 U.S. 150, 84 L.Ed. 1129 (1940). (531 F.2d at 191)

Of greater import in the Worlang decision is a situation

where the prosecution called a witness for the sole pur-

pose of denying he had any conversations with a prison

inmate; said conversations implicating Morlang. There-

after the government called the inmate. That inmate was

then permitted to testify that he had a conversation with

the first witness and, further, that the conversation in-

volved Morlang. The Court found prejudicial error in

the government shenanigans (allowing the inmate to tes-

.tify as to the conversation with the first witness under the

guise of impeaching the testimony of the first witness

(id. at 189-190). Ultimately, the Court, while finding

prejudicial error, stated:

Witnesses may, of course, sometimes fail to come

up to the expectations of counsel and in such situations

there is an understandable temptation to get before

the jury any prior statement made by the witness.

And it may be that in certain instances impeachment

might somehow enhance the truth-finding process.

Yet, whatever validity this latter assertion may have,

it must be balanced against the notions of fairness

upon which our system is based. Foremost among

these concepts is the principle that men should not be

allowed to be convicted on the basis of unsworn testi-

24

mony. Bridges v. Wizon, 326 U.S. 135, 153-54, 65

S.Ct. 1443, 89 L.Ed. 2103 (1945). (531 F.2d at 190)"®

In Phillips v. Wyrick, 558 F.2d 489 (8th Cir., 1977) the

Court affirmed the denial of habeas relief where the habeas

petition claimed a deprivation of the constitutional right

of confrontation (id. at 492). In Phillips a prosecutor

was allowed to testify, at trial, as to what an earlier pros-

ecution witness testified to at a preliminary hearing.

During the Phillips trial this same witness invoked his

testimonial privilege. The prosecution then called an as-

sistant prosecutor who testified as to the substance of the

prosecution’s witness testimony at an earlier preliminary

hearing . . . where Phillips was represented by counsel

and had the plenary opportunity for both confrontation

and cross-examination (id. at 492-494). The Court, while

affirming habeas relief took the position that the earlier

opportunity to conduct a full and complete cross-examina-

tion of the witness accorded the confrontation requirement

and therefore there was no error in allowing the prosecutor

to now testify as to the substance of the preliminary hear-

ing testimony against Phillips (558 F.2d at 496-97). How-

ever, while affirming, the Court used the following caveat:

Our conclusion might differ were there any tndica-

tion in the record that the written statement attributed

to Brownfield had been read to the jury or otherwise

admitted into evidence. Such an occurrence would

eall for a careful analysis of whether the jury could

adequately weigh the credibility of the extrajudicial

statement, whether it was crucial to the government’s

case, and whether its use before the jury was limited

19In Morlang, Circuit Court Judge Butzner dissented (531 F.2d

192-193).

25

by the trial judge. (558 F.2d at 497; emphasis sup-

plied)”

The ‘‘sub’’ question presented is the lack of any limit-

ing instruction. The single requested instruction has been

reproduced as Appendix C, infra. While the proffered in-

struction is hardly a model of clarity, nevertheless, it could

have provided some insight to the trial jury as to the man-

ner or method by which the testimony of Ms. Watson (and

the testimony of the non-witness Cathy Green) could or

should be viewed (impeachment vs. substantive evidence

against the present petitioner). In Benson v. U.S., 402

Fed.2d 576 (9th Cir., 1968) the Court reversed a federal

narcotic conviction finding, inter alia, that the failure to

properly instruct a trial jury as to the weight given an

*0The petition at bar (that is the trial record) clearly reveals

that the written statement attributed to Ms. Cathy Green (the non-

appearing but testifying eye-witness) was read to the jury. Further,

the Green statement was crucial to the prosecution’s case. Further,

the weight of this statement (impeachment vs. substantive evidence

against petitioner) was in vo wise limited during the court’s charge

to the jury, or otherwise. The joint statement of Ms. Watson and

Ms. Green appears in the trial record at R. 15 and is reproduced as

Appendix D of this petition.

The Phillips’ decision would seemingly compel reversal of the

conviction presently challenged in this petition based on the following

verbiage from Phillips:

If in fact it constituted the unsworn extrajudicial statement

of an alleged accomplice, inadequately tested by cross-exami-

nation and failing to bear sufficient indicia of reliability to have

been placed before the jury in a nonprejudicial manner, then

such evidence might indeed be found to have posed a substantial

threat to petitioner’s right to confront the witnesses against him.

See Dutton v. Evans, supra; Bruton v. United States, 391 U.S.

123; Brookhart v. Janis, supra; Douglas v. Alabama, 380 U.S.

415. (558 F.2d at 497)

26

inconsistent statement led to prejudicial error where the

Statement (written) was identified, described and offered

into evidence by the prosecution. The Court in Benson

found that based on the prosecution’s use of the prior in-

consistent statement .. . the failure to give a limiting in-

struction, sua sponte, was plain and prejudicial error (402

F.2d at 581-582). In U.S. v. Gregory, 472 F.2d 484 (5th

Cir., 1973) the Court reversed a federal second degree

murder conviction finding, inter alia, that after improper

impeachment the failure of the trial court to instruct the

jury that the impeaching statements could not be used as

affirmative evidence was prejudicial error; this, notwith-

standing a failure by the defense to request such an in-

struction (472 F.2d at 489).”*

We respectfully suggest that under combined questions

1 and 1(a) this petition has presented a substantial con-

stitutional confrontation question. We deem it most in-

appropriate to consider that this Court will condone a state

conviction and prison sentence where the prosecution

was allowed to present evidence of an unsworn unseen

eye-witness through the lips of the prosecuting attorney

under the guise of rehabilitating another eye-witness to

the shooting. We further suggest that this evidence was

crucial to the prosecution in that there were but two (2)

live prosecution eye-witnesses and the petitioner, and

others, testified that the petitioner did not commit the

offense for which he was tried, convicted and sentenced.”

21 In poor taste we retreat to respectfully remind this Court that in

Bridges v. Wixon, 326 U.S. 135 (1945) this Court condemned the

use of impeachment evidence as proof for the substantive offense

(Cf., 326 U.S. 153, citing additional authorities).

22 The petitioner received a prison sentence, but the execution of

the sentence was stayed by a justice of the Illinois Appellate Court

pending disposition of this petition (Appendix E, infra).

27

QUESTION 2

After the close of the evidence and during the conference

on instructions a question was raised as to restricting the

right of the petitioner to argue the impeachment aspect

of the Watson-Green statement. In pertinent part, the

colloquy is as follows:

Mr. Franklin: [Defense Counsel] Your Honor, I

hope that I’m not going to be restricted from arguing

that in front of this jury, because it’s—

The Court: Well, you certainly will be restricted

from arguing impeachment of Watson made by state-

ments of Green, that’s the whole thrust of the dilemma

in this case.

As I indicated in the record, I felt it was not dealing

in candor with the Court or with the jury to question

Watson on statements that were made by Green, in the

statement from which you read.

Mr. Franklin: Does that mean that I’m going to

be denied the right to mention that statement?

The Court: You can mention the statement and

you can mention the faet that she stated at the bottom

that she read the statement by Green. But you won’t

purport to make Green’s statement her statement as

you did or as your co-counsel did on the direct pre-

sentation of this matter.

Mr. Franklin: Your Honor, I’m going to object

to that, because it’s our understanding and it was

our belief from the very beginning that that statement

incorporated both statements of the defendant. And

they were both questioned together. And it repre-

sented the total sum of their knowledge of that inci-

dent. That’s why they were questioned together and

they both signed it. And I feel that by not allowing

me to argue that, you’re restricting the defense of my

client by not giving me an opportunity to show—

(Tr. 403, 4)

28

In Herring v. New York, 422 U.S. 853 (1975) this Court

reversed an attempt robbery conviction finding that a New

York statute limiting the right of defense counsel to no

closing argument in a bench trial was a denial of the Sixth

Amendment right to the assistance of counsel. Clearly,

‘‘the assistance of counsel’’ concept of the Sixth Amend-

ment is applicable to the case at bar (Cf., Herring, 422 U.S.

857, n. 7). Can there be any difference (realistically speak-

ing) to on the one hand, deny to the defense any closing

argument and, on the other hand, deny defense counsel

the right to argue what is realistically the sine qua non

of the particular case? We suggest that there is no real-

istie difference and that the petitioner at bar was denied

the ‘‘assistance of counsel’’ by virtue of the trial court’s

ruling denying defense counsel the opportunity to argue

the impeachment of Ms. Watson by virtue of the joint

statement read to the trial jury by the prosecution. In

reality, as in Herring, a distinction absent a difference.

The prosecution, not content with the defense being pre-

cluded from arguing the ‘‘heart’’ of their defense case,

went on to urge the trial jury to convict suggesting ‘‘facts’’

not in evidence. In Taylor v. Kentucky, ........ 7 ae

98 S.Ct. 1930 (1978) this Court reversed Taylor’s vhhery

conviction finding that the combination of the failure of

the trial court to instruct on the ‘‘presumption of inno-

cence’? and the prosecutor’s improper closing argument

combined to deny Taylor a constitutionally protected trial.

In Taylor the Court reversed the conviction based on the

trial court’s refusal to give an instruction on ‘‘presump-

tion of innocence”’ and in denying the instruction Taylor

23 For example, the prosecution urged that it was likely that the

missing gun was in the apartment of a defense witness . . . albeit

there was hardly a shred of evidence to suggest such a “fact” (Tr.

471).

29

was denied a fair trial as guaranteed by the Due Process

Clause of the Fourteenth Amendment (98 S.Ct. at 1937).

However, the Taylor opinion did make reference to the

prejudicial closing argument by the State prosecutor (98

S.Ct. at 1935-36). This Court further opined that the pros-

ecutorial comments, standing alone, might not rise to the

level of reversible error... AN ISSUE NOT RAISED IN

THIS [TAYLOR] CASE (98 S.Ct. 1936, n. 14).

Petitioner at bar squarely raises the question(s). Did

the combination of a grossly improper closing argument

by the prosecution coupled with the ‘‘express limitation”’

place on the defense closing argument combined to deny

the petitioner at bar his due process protections as per

the Fourteenth Amendment? All this, in connection with

the question posed in 1 and 1a of this Petition rise to the

level of constitutional dimension.

CONCLUSION

Ahmed Ben Alarshi, petitioner herein, respectfully prays

that this Court grant his petition for writ of certiorari to

the Appellate Court of Illinois and thereafter vacate and

remand the case at bar to the Illinois Courts for trial anew.

Respectfully submitted,

AutLtaAN A, ACKERMAN

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

332-2863

Kucter, De Leo & D’ Arco, Lrp.

100 North LaSalle Street

Chicago, Illinois 60602

263-3020

Attorneys for

Aumep Ben Auarsut, Petitioner

APPENDIX

APPENDIX A

First Division

February 6, 1973

76-1471

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

vs.

AHMED BEN ALARSHI,

Defendant-A ppellant.

Appeal from the Cireuit Court of Cook County; the

Hon. Ricuarp Curry, Judge, presiding.

Mr. Prestpine Justice GoutpBere delivered the opinion of

the court:

After a jury trial, Ahmed Ben Alarshi (defendant) was

found guilty on two counts of aggravated battery (Ill. Rev.

Stat. 1973, ch. 38, par, 12-4), and sentenced to 1 to 3 years.

On appeal he contends only that the court erred in refusing

to instruct the jury regarding prior inconsistent statements

and that this error was compounded when the court prohib-

ited the defense counsel from commenting upon these incon-

sistencies in closing argument.

The victim, Freddi Demellow, was shot in a tavern, in

Chicago, shortly after midnight on June 13, 1974. Jean

Watson testified she and Kathy Green were working as

dancers in the tavern. The defendant, owner of the tavern,

was tending bar. He engaged in heated conversation with

a blond woman at the portion of the bar farthest from the

ox

App. 2

front door. At about 11 p.m., the victim entered the tavern

and sat at the bar near the door. Shortly after midnight,

the victim walked to the back of the tavern and made a

telephone call. As he walked down the length of the bar

to return to his seat, the witness saw the deefndant warn

two customers who had just entered the tavern to ‘‘leave

quick.’’ At the same time the blond woman walked past the

victim toward the front door. The witness heard a shot,

saw the victim fall near the bar, and saw the defendant

holding a gun ‘‘straight out.’’ The defendant then quickly

walked to the rear of the tavern with the gun and returned

empty-handed. The witness also testified she heard another

shot some 10 minutes before, which was followed by a re-

mark made by the defendant to the blond woman concerning

the Fourth of July. The witness ran to her dressing room

following the second shot.

On cross-examination it was revealed that, in addition

to her testimony at the preliminary hearing, the witness,

Jean Watson, gave the police a statement subsequent to

the incident. This statement, to be more fully discussed

below, was a joint written statement given by Jean Watson

and Kathy Green. The preliminary testimony and the joint

statement both attributed the shooting of the victim to the

defendant.

Miss Watson’s account of events was substantially dupli-

cated by the victim, Freddi Demellow, who also testified

for the State. He added that when the defendant served

him a drink after he arrived at the tavern, the defendant

motioned toward the blond woman at the far end of the

bar and said he had to ‘‘settle an account’’ with her. The

victim saw the defendant return from the back of the tavern

with a gun and fire it into the air as he asked of the blond

woman, ‘‘Haven’t you heard of the 4th [sic] of July?’’

App. 3

The victim stated the defendant then placed the gun under-

neath the bar. The victim also testified that the defendant,

‘‘had the gun in his hands and fired the bullet’? which

wounded him. As he lay on the floor the defendant leaned

over and requested him not to tell the police who shot him.

The victim also testified that, three days later, the defen-

dant visited him in the hospital, asked to be forgiven and

offered to take care of the vietim’s children.

A police officer testifying for the State spoke with the

victim for a few moments after the shooting. The victim

indicated at that time he knew the identity of the assailant

although he did not provide the officer with any name.

The defendant testified in his own behalf. He denied

shooting Freddi Demellow or ever possessing a gun and

stated he did not know who shot the victim. On cross-

examination the defendant acknowledged visiting the victim

in the hospital three days after the incident but denied ask-

ing forgiveness for his actions. He stated he merely ex-

pressed his sympathy and offered to watch the victim’s

children because he felt sorry for him.

Defendant contends only that the court erred by not pro-

viding the jury with an instruction regarding prior incon-

sistent statements. (Illinois Pattern Jury Instructions,

Criminal, No. 3.11 (1968) (hereinafter cited as IPI Criminal

No. 3.11).) It is defendant’s position that this instruction

was necessary in view of the inconsistencies between the

trial testimony and both the preliminary hearing testi-

mony of Jean Watson and the joint statement she and

Kathy Green gave the police.

As the preliminary hearing Jean Watson testified she was

unable to recall the number of shots fired. She also did

not mention the earlier shot or defendant’s remark con-

App. 4

cerning the Fourth of July. Defendant contends that this

prior testimony directly contradicted Jean Watson’s testi-

mony at trial, wherein she specifically remembered two

shots and defendant’s remark which followed the earlier

shot. We are unable to agree with defendant’s position

that these inconsistencies constitute material discrepancies

impeaching the witness. Although out-of-court written or

oral statements may be introduced to discredit a witness

(Hapke v. Brandon (1951), 343 Ill. App, 524, 528, 99 N.E.

2d 636), these statements ‘‘mnust have the ‘reasonable

tendency’ to discredit the testimony of the witness on a

material matter.’’ (People v. Brown (1972), 6 Ill. App. 3d

500, 504, 285 N.E.2d 515, quoting from People v. Rainford

(1965), 58 Ill. App. 2d 312, 321, 208 N.E.2d 314; see also

Reilly Tar & Chemical Corp. v. Lewis (1942), 326 Ill. App.

84, 87, 61 N.E.2d 290.) Jean Watson’s testimony at the

preliminary hearing that she was unable to recall the num-

ber of shots fired, as well as her omission of defendant’s

earlier remark and the first shot, are not contradictions of

material matters bearing upon the trial issue as to whether

defendant fired the shot which struck Freddi Demellow.

The cases cited by defendant are unpersuasive in that

they involve prior impeaching statements which directly

contradicted the trial testimony of the witness on material

elements of the offense charged (People v, Ladas (1957),

12 Ill. 2d 290, 294, 146 N.I.2d 57; People v. Mitchell (1975),

27 Ill. App. 3d 117, 121, 327 N.E.2d 158, leave to appeal

denied, 60 Ill. 2d 599); or revealed omissions in the trial

testimony material to the credibility of the witness (People

v. Henry (1970), 47 Ill. 2d 312, 319-20, 265 N.E.2d 876).

Furthermore, the trial testimony of Jean Watson was cor-

roborated by the victim, who provided clear and convincing

testimony that defendant held the gun and fired the im-

portant shot which wounded the victim.

Defendant also claims Jean Watson was impeached dur-

ing cross-examination by portions of the joint statement

App. 5

she and Kathy Green gave the police. This joint statement

was typed on one sheet of paper. It consisted of questions

preceded by ‘‘Q.’’ and separate responses by the witnesses

preceded by identifying letters ‘‘W.’’ and ‘‘G.’’ respective-

ly. Each witness signed the statement which included two

typed answers ‘‘Yes’’ after each initial responding to the

question ‘‘Do each of you agree that the account given by

the other is accurate?’

During cross-examination of Jean Watson, defense coun-

sel attempted to impeach her by pointing out that accord-

ing to the typed statement the defendant fired additional

shots outside the tavern following the shooting, four people

ran out of the tavern, and the defendant telephoned the

police, This was actually unfair and improper as these

questions all incorrectly attributed to Jean Watson the

response actually made by Kathy Green. On redirect ex-

amination the State brought out, over objection by defen-

dant, that these parts of the statement were in fact made

by Kathy Green, as was indicated on the typed sheet by

the letter ‘‘G.’’ appearing before this material. Neither

defendant nor the State offered this joint statement in evi-

dence. During jury deliberation, the jury sent out a writ-

ten note which requested a copy of the statement. The trial

court consulted with counsel. The court gave the jury

a written response that they were ‘‘in possession of all the

material which is evidence in this case’’ and that the state-

ment had not been admitted into evidence.

Defendant contends that the statements provided by

Kathy Green are completely attributable to Jean Watson

in view of the reference by each witness to the other’s

**account.”’

In our opinion it was unfair to attempt to attribute the

Kathy Green statements to Jean Watson even though Wat-

son had, in a general way, expressed the opinion that the

App. 6

responses given by Green were ‘‘accurate.’’ Furthermore,

of dispositive importance is the fact that whether defen-

dant fired additional shots outside, whether four people

ran out of the tavern and whether defendant telephoned the

police have no materiality here. Therefore, as above shown

these statements by Green were not proper as attempted

impeachment of Watson’s trial testimony. In addition, the

allegedly impeaching comments contained in the joint state-

ment and read to the jury do not, in our opinion, contradict

or tend to vary the trial testimony of Jean Watson regard-

ing the actual shooting (People v. Miller (1975), 31 Ill.

App. 3d 436, 446, 334 N.E.2d 421). In our opinion, it was

not necessary for the trial court to give the jury IPI

Criminal No. 3.11. In this situation it was sufficient for

the court to give the jury the instruction concerning the

credibility of the witnesses. Illinois Pattern Jury Instruc-

tions, Criminal, No. 1.02 (1968).

In closing argument, the court restricted defense counsel

to description of the joint statement and stating the fact

that it showed that Jean Watson read the statements of

Kathy Green and signed the statement regarding the ac-

curacy of the responses by Kathy Green. We find no error

in this regard as it permitted a full and accurate exposi-

tion of the joint statement.

We will also point out the strong and overwhelming evi-

dence of guilt. The testimony of Jean Watson and Freddi

Demellow was clear and convincing to establish guilt be-

yond reasonable doubt. As opposed to this evidence the

defendant offered only a categorical denial of guilt. De-

fendant received a fair trial free from error. The judg-

ment appealed from is affirmed.

Judgment affirmed.

McGtoon and O’Connor, Jz., JJ., concur.

App. 7

APPENDIX B

ILLINOIS SUPREME COURT

CLe.t L. Woops, Clerk

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

May 26, 1978

Mr. Ludwig E. Kolman

Attorney at Law

William J, Harte, Ltd.

111 West Washington St.

Chicago, IL 60602

No. 50603—People State of Illinois, respondent, vs. Ahmed

Ben Alarshi, petitioner. Leave to appeal, Ap-

pellate Court, First District.

You are hereby notified that the Supreme Court today

denied the petition for leave to appeal in the above en-

titled cause.

Very truly yours,

CuieELL L. Woops

Clerk of the Supreme Court

APPENDIX C

3.11 Impeachment-Prior Inconsistent Statements

Evidence that on some former occasion a witness (made

a statement—acted in a manner) inconsistent with his testi-

mony in this case, may be considered by you in deciding

the weight to be given to the testimony of that witness.

App. 8

APPENDIX D

13Jun74

Joint statement of Jean Watson and Kathy Green, relative

to the shooting of Fredi Demellow, which occurred on 13

Jun74, at about 12:10 A.M., in the Three Star Hellenic

Restaurant, located at 4657 N. Kedzie Avenue.

Statement taken at the 17th District on 13Jun74 at 2:15

P.M.

Questioned and typed by: Inv. James P. Phelan +8911,

H/S #5

Q. What are your names, address, and phone numbers?

W. Jean Watson, 1756 W. Nelson, 929-7299,

G. Kathy Green, 1703 W. Barry, 528-6204.

Q. What do you girls do for a living?

W. Weare dancers at the Three Star Hellenic Restau-

rant.

Q. Would you tell me in your own words what hap-

pened this evening?

W. We were in the place since about 9:00 o’clock, When

we got there, El was tending bar. At the end of the bar,

a blond girl about 25 years old, was seated. She is a bar

maid there. She has been working there since we started.

About 11:00 o’clock, Fredi came in and sat at the bar.

He was sitting near the front door, next to me, and Kathy

was sitting around the corner of the bar. All evening, El

was arguing with the blond, who is the girl friend of the

bartender. The arounf (sic) 12:00 o’clock, El] and the blond

were still arguing. Fredi got up from the bar to go to the

phone to call a cab. Then he walked to the front of the

place, back to his stool. This is when the blond was walk-

ing to the front door. At the same time, two guys were

App. 9

coming into the place. One of them walked in, and El

apparently thought that the blond was leaving with them.

E] told them that they better get out of there, and fast,

and they turned around and walked out. At that time, the

girl was starting to go out the door, and 1 reached under

the bar. |

Q. What happened then?

G. El reached under the bar, and I saw him reach out

with an object in his hand, and I heard a loud noise, and

saw Fredi fall down to the floor. El then ran out of the

bar, to the front door. He stepped out and fired some

shots outside. There were about four other people in the

place who ran out. Then El] ran to a back room, walked

in, returned from the room, and called the police.

Q. In this statement, you refer to a man as El. Is he

the same man who is in the station this morning?

W. Yes.

Q. Each of you have responded to a part of this state-

ment. Do each of you agree that the account given by the

other is accurate?

W. Yes

G. Yes

Q. Is there anything that you want to add to this state-

ment?

W. ¥es. No. JPP Kathy Green

G. ¥es. No JPP Jean Watson

App. 10

APPENDIX E

IN THE APPELLATE COURT, STATE OF ILLINOIS

FIRST DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

AHMED BEN ALARSHI,

Defendant-Appellant.

NO. 76-1471

ORDER

(Filed July 17, 1978)

This cause coming to be heard on motion of the defen-

dant-appellant, AHMED BEN ALARSHI, due notice hav-

ing been given and the court being fully advised in the

premises and having jurisdiction over the parties and sub-

ject matter;

” IT IS HEREBY ORDERED:

In consideration of the motion and affidavit filed on be-

half of defendant-appellant, Ahmed Ben Alarshi, it is here-

by ordered that this Court’s mandate be stayed pending

the filing and disposition of the petition for writ of cer-

tiorari to the United States Supreme Court in the above-

captioned case.

/s/ Mayer Goldberg

Justice