Where the state seeks to challenge the credibility of an alibi, the state may question a witness or defendant repeatedly about drug and alcohol use without having to introduce proof of such to formally impeach the witness.

The 1st District Appellate Court affirmed the decision of Cook County Circuit Judge Thomas J. Byrne.

Around 2 a.m. on Aug. 18, 2012, Chicago police officers Joseph Montesdeoca, Pablo Delgado, Orlando Long and a fourth officer responded to reports of an armed man.

When the officers emerged at 108th Street and South Eggleston Avenue, they saw Courtney Lewis look at them, grab the right side of his waistband and run south.

Montesdeoca gave chase and witnessed Lewis throw a gun from his waistband onto the ground. Lewis was found by Montesdeoca hiding near the basement door of a house. The gun Montesdeoca observed was recovered.

Lewis was arrested and read his rights. Delgado testified that Lewis stated he was carrying the gun for protection, but this statement was neither memorialized nor signed by Lewis.

Lewis did not have a valid Firearm Owner’s Identification card. At trial, Lewis claimed that he had been at a party involving strippers earlier with some friends and that they had been lingering outside afterward when an unmarked car with headlights off approached at high speed. They fled, fearing it may be a drive-by shooting.

At trial, Lewis denied knowing that his pursuers were police officers and denied ever owning or possessing the gun. On cross-examination, he denied that he or his friends had been drinking or smoking marijuana at a party.

Joshua Reed, who also was present, confirmed Lewis’ testimony. Lewis was found guilty and sentenced to one year in prison. He appealed.

On appeal, Lewis argued that the state failed to perfect its impeachment of him and Reed. Lewis asserted that the state improperly raised the issue of alcohol or marijuana as an attempt to impeach his testimony.

The state argued that the error was forfeited, noting that counsel for Lewis objected only once to this line of questioning and let several questions about alcohol and marijuana go by unchallenged. However, the appellate court may consider it under the plain error doctrine.

Lewis argued that the state improperly asked questions for the purpose of impeachment without preparing to offer any impeaching information. The state disagreed, asserting that the cross-examination was to probe Lewis’ and Reed’s credibility about the asserted sober stripper party, which “strains common sense and plausibility.”

Lewis cited precedent that “[i]t is improper for the prosecutor to ask a witness questions for purposes of impeachment unless the prosecutor is prepared to offer proof of the impeaching information.”

The appellate court found that precedent inapplicable, as it related to incidents where the prosecutor, in questioning the witness, asserted that the witness had made a threatening statement.

In the instant case the state did not assert that Lewis or Reed had been drinking or smoking, but merely asked if they had, allowing them to deny it as they did. As such, the trial court committed no clear and obvious error, a required prong of the plain error doctrine.

Lewis also challenged the state’s failure to test the recovered weapon for fingerprints, but the appellate court was unsympathetic, noting that this request came only after Lewis’ first trial resulted in a hung jury, when the handling and storage of the gun were likely to have erased any fingerprints.

The appellate court, therefore, affirmed the circuit court’s decision.

People v. Courtney Lewis

2019 IL App (1st) 160705

Writing for the court: Justice Robert E. Gordon

Concurring: Justices Margaret Stanton McBride and Jesse G. Reyes

Released: Jan. 21, 2020