                                     NO. 4-04-0043              Filed: 9/7/06

                               IN THE APPELLATE COURT

                                      OF ILLINOIS

                                    FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )   Appeal from
          Plaintiff-Appellee,          )   Circuit Court of
          v.                           )   Livingston County
MICHAEL J. SINGLETON,                  )   No. 03CF125
          Defendant-Appellant.         )
                                       )   Honorable
                                       )   Harold J. Frobish,
                                       )   Judge Presiding.
______________________________________________________________

              PRESIDING JUSTICE TURNER delivered the opinion of the

court:

              In November 2003, a jury found defendant, Michael J. Singleton, guilty of

burglary, theft over $300, animal torture, and aggravated cruelty to a companion animal.

In January 2004, the trial court sentenced defendant to concurrent, five-year prison

terms on the offenses of burglary and animal torture.

              On appeal, defendant argues (1) the State failed to prove him guilty

beyond a reasonable doubt, (2) the trial court erred in allowing the State to inform the

jury that a codefendant had pleaded guilty, and (3) statements made by two of the

State's witnesses were not admissible as impeachment. We affirm.

                                     I. BACKGROUND

              In May 2003, a grand jury indicted defendant on three counts of burglary

(count I, III, and IV) and single counts of arson (count II), theft over $300 (count V),

animal torture (count VI), and aggravated cruelty to a companion animal (count VII).

Count III alleged defendant committed the offense of burglary on October 29, 2002,

when, without authority, he knowingly entered Scotty's Place, with the intent to commit a
theft therein. Count IV alleged defendant committed the offense of burglary on October

31, 2002, when, without authority, he knowingly entered Buck's Garage with the intent

to commit a theft therein. Count V alleged defendant committed the offense of theft

over $300 when he knowingly exerted unauthorized control over property of James

Sewell with the intent to permanently deprive Sewell of the benefit of the property.

Count VI alleged defendant committed the offense of animal torture in that defendant,

without legal justification, tortured a dog by beating it about the head with a hammer or

mallet so as to inflict extreme physical pain and motivated by the intent to increase or

prolong the dog's pain. Defendant pleaded not guilty. The trial court severed counts I

and II and proceeded to trial on counts III through VII.

              In November 2003, defendant's jury trial commenced. Chris Gordon

testified he and defendant broke into Scotty's Place in Pontiac on October 29, 2002, and

then fled when the burglar alarm sounded. On October 31, 2002, Gordon and

defendant entered Buck's Garage and found "power tools for working on cars." Gordon

stated they put the tools in a box and put them in his car. Gordon stated a black or

brown dog was in the garage walking around and barking. The dog "barked and

growled a bit, at first," and after awhile it acted like it wanted to be petted. Gordon

testified defendant hit the dog with a sledgehammer. He then "hung it from a chain."

Gordon testified he left his car out in the country a few days later, walked to a

farmhouse with defendant, and took a van. Gordon's car was later recovered and he

was questioned about the tools.

              Gordon testified he remembered being charged for the burglary of Buck's

Garage but not Scotty's Place. He "vaguely" remembered talking to police officers in a

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series of interviews about the burglaries. He also remembered court hearings concern-

ing whether statements he made could be used against him. Defense counsel

objected, stating the questioning was irrelevant and immaterial. The trial court

overruled the objection, finding defense counsel invited the line of questioning. Gordon

pleaded guilty to misdemeanor charges arising out of taking the van. He also received

immunity from further prosecution as to the events at Buck's Garage and Scotty's Place

as long as he testified truthfully in court.

               On cross-examination, Gordon testified he went to retrieve his dad's car in

the country but it was no longer there. He then called the police to report it stolen. The

tools taken from Buck's Garage were in the back of the car. On redirect examination,

Gordon testified he told the police about his involvement in the crimes and that of

defendant as well.

               John Crain testified he is defendant's brother. Defendant spent some

nights at Crain's house in Bradley during October and November 2002. During that

time, defendant mentioned being wanted in Pontiac and the police questioning him

about a dog. Defendant mentioned he had been drinking and his friends beat a dog to

stay quiet sometime in June "when we was [sic] out at Rock Creek swimming." The

following exchange then occurred:

                      "Q. Did you tell some U.S. Marshals back on

               February 6 of 2003 that I asked, he said he was drinking and

               the dog wouldn't shut up, so his friends beat it to quiet it?

                      A. No. I told them a way bigger story than that, but

               they told me only to write that.

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                    Q. Did you write that?

                    A. Yes. I had to. They said they were going to put

             me in jail and I was going to lose my job. I would be in

             federal prison if I didn't."

The State asked Crain to identify People's exhibit No. 16 as the written statement he

gave to the marshals on February 6, 2003.

             On cross-examination, Crain acknowledged the statement and explained

what defendant had told him about an incident with a dog.

             "[Defendant] told me him and his friends go out drinking out

             by a farm, out by a cornfield, they kick their lights off on their

             car and sit there and they drink. And this dog from one of

             the farmhouses kept coming out by the cornfield, and

             barking and everything. So one of his buddies had chased

             the dog off you know, kicking it, throwing a beer can at it or

             whatever to get it to run back to the house so the people

             wouldn't come out and catch them out there. Because they

             would have been busted for drinking underage."

The trial court ruled the State was precluded from using Crain's prior statement as

substantive evidence but was allowed to impeach him with the statement as to its

reference to defendant having told Crain that his friends had previously beaten a dog.

             Matt Mason testified John Crain called him in November 2002 asking for a

ride because his car had run out of gas. Mason then picked up Crain and defendant at

a hotel in Bradley. A discussion ensued, and defendant mentioned "they were trying to

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put him in jail for killing a dog." Defendant denied it. The following exchange occurred:

                     "Q. Do you remember telling [an officer] that

             [defendant] told you that he had killed the dog, and you

             telling [defendant] that was stupid?

                     A. No.

                     Q. Do you remember--

                     A. I never told her that he told me that he did it.

                     Q. What did you tell her?

                     A. I told her that him and John told me that he was in

             trouble, that the cops were trying to put him in jail for it.

                     Q. Do you remember the business about that was

             stupid? Do you remember saying that?

                     A. For all the trouble he was in, I told him that he was

             stupid. And he needed to stay out of trouble.

                                             ***

                     Q. Okay. And you never said to the officers, to the

             agent that day, that he killed a dog, that [defendant] said he

             killed the dog by slamming a hammer through the dog's

             head?

                     A. No. That is a lie.

                     Q. Never said that when he told you that he killed the

             dog, you said that was stupid?

                     A. I never said that. I said he was stupid for being in

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             trouble, and he needed to stay out of trouble."

             Pontiac police commander Roger Newsome testified he interviewed Matt

Mason in February 2003. During the interview, Mason stated defendant told him he had

killed a dog by slamming a hammer through its head. In November 2002, Newsome

conducted a search of defendant's apartment and seized two T-shirts and a gray,

hooded sweatshirt.

             Livingston County deputy sheriff Marie Margherio testified that on October

31, 2002, "a distraught male, an elderly gentleman that was crying and shaking very

badly," approached her vehicle and stated his business had been broken into and his

dog had been killed. The elderly gentleman, James Sewell, took her to Buck's Garage

and showed her his dog Sadie suspended "from a log chain that was hanging up over

the rafters." Margherio noticed a hammer and a "large area of red fluid" on the floor.

             James Sewell testified he runs a car-repair business out of Buck's Garage.

In the evening of October 30, 2002, he returned to the garage to feed his dog Sadie.

The next morning, Sadie did not meet him at the door. Sewell turned on the lights and

found Sadie hanging by a chain in the back room.

             Sergeant Brian McCabe testified a car belonging to Chris Gordon's family

was recovered by police. Gordon's father came to pick up the car, opened the trunk,

and found a large number of tools, some that did not belong to him. He left those tools.

Police officers ultimately determined the tools had been stolen from Buck's Garage.

Officers then interviewed Chris Gordon about the tools.

             Jennifer Ayers testified she is the Livingston County animal-control

warden. She removed Sadie from the chains, placed her in a bag, and took her to the

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warden's facility. She then took hair and blood samples from the dog. She said Sadie

was a border collie mix and had broken ribs and indentation markings that led her to

conclude the dog "obviously had been beaten."

              Glenn Schubert testified he worked as a forensic scientist with the Illinois

State Police and specialized in the examination of human and animal hairs. He found a

dog hair suitable for comparison taken from defendant's gray sweatshirt and compared

it to the hair standard taken from Sadie. He concluded the hairs were "microscopically

consistent" and could have originated from the same dog. Schubert stated he would put

more weight on his conclusion because the hairs came from a mixed-breed animal,

which has "more unique" characteristics than a purebred animal.

              After the State rested its case, the trial court, over defendant's objection,

read to the jury a summary prepared by the State of Chris Gordon's criminal cases.

The trial court in Gordon's case granted his motion to suppress statements, and Gordon

pleaded guilty to the offenses of criminal trespass to a vehicle (the stolen van) and theft

(tools from Buck's Garage). The court sentenced Gordon to 158 days in jail on both

offenses with 158 days' credit for time served. Gordon received immunity from further

prosecution and was required to testify truthfully in the prosecution of defendant.

              Joshua Crain testified he is defendant's half-brother as they share the

same mother. Crain stated he saw defendant at Crain's apartment around 5 p.m. in the

evening of October 30, 2002. Defendant stayed with him until 7:30 a.m. on October 31,

2002, when he called for a ride home.

              Defendant testified on his own behalf and denied breaking into Scotty's

Place and Buck's Garage. He also denied killing a dog. He testified he stayed at his

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half-brother's house on October 30, 2002, until the next morning when his sister picked

him up. Defendant pleaded guilty to criminal trespass to a van that occurred on

Halloween night. He later traveled to Georgia to spend Thanksgiving with his

grandmother. He was arrested on December 18.

              Following closing arguments and several jury questions, the jury found

defendant guilty of count IV (burglary of Buck's Garage), count V (theft over $300),

count VI (animal torture), and count VII (aggravated cruelty to a companion animal) and

not guilty of count III (burglary of Scotty's Place).

              In December 2003, defendant filed a motion for a new trial and other

posttrial relief. In January 2004, the trial court denied the motion. Thereafter, the court

sentenced defendant to five years in prison on count IV and a concurrent sentence of

five years on count VI. This appeal followed.

                                        II. ANALYSIS

                               A. Sufficiency of the Evidence

              Defendant argues the State failed to prove him guilty beyond a reasonable

doubt where the primary evidence against him was the testimony of an accomplice, no

corroboration testimony was presented, and defendant presented an alibi defense. We

disagree.

              When reviewing a challenge to the sufficiency of the

evidence in a criminal case, the relevant inquiry is whether,

when viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.


                                             - 8 -
People v. Ward, 215 Ill. 2d 317, 322, 830 N.E.2d 556, 559 (2005).

 The trier of fact has the responsibility to determine the credi-

bility of witnesses and the weight given to their testimony, to

resolve conflicts in the evidence, and to draw reasonable infer-

ences from that evidence.            People v. Phelps, 211 Ill. 2d 1, 7,

809 N.E.2d 1214, 1218 (2004).              A court of review will not over-

turn the verdict of the fact finder "unless the evidence is so

unreasonable, improbable[,] or unsatisfactory that it raises a

reasonable doubt of defendant's guilt."                  People v. Evans, 209

Ill. 2d 194, 209, 808 N.E.2d 939, 947 (2004).

              The testimony of an accomplice witness has inherent

weaknesses, and the trier of fact should accept it "only with

caution and suspicion."            People v. Tenney, 205 Ill. 2d 411, 429,

793 N.E.2d 571, 583 (2002).             "Nevertheless, the testimony of an

accomplice witness, whether corroborated or uncorroborated, is

sufficient to sustain a criminal conviction if it convinces the

jury of the defendant's guilt beyond a reasonable doubt."

Tenney, 205 Ill. 2d at 429, 793 N.E.2d at 583.

              Viewing the evidence in the light most favorable to the State, we conclude

a rational trier of fact could have found defendant guilty of the charged crimes.

Defendant's accomplice, Chris Gordon, testified that in the early morning hours of

October 31, 2002, he and defendant entered Buck's Garage. Upon entry, the two found

power tools and put them in a box. The box of tools ended up in Gordon's car. While

inside the business, Gordon testified defendant hit the dog with a sledgehammer and



                                          - 9 -
then hung it from a chain.

              Gordon also testified that later in the week, Gordon, defendant, and two

females were riding in Gordon's car. Gordon abandoned the car in the country, walked

to a farmhouse with defendant, and took a van. Tiffany Hulbert testified she was riding

in Gordon's car when it broke down. Defendant and Gordon went to a nearby house to

borrow a van. After being stopped by police, defendant and Gordon fled. Police

recovered Gordon's car, and Sewell identified the tools found in the car as the tools

taken from the garage.

              James Sewell testified he found his dog Sadie hanging by a chain.

Jennifer Ayers found Sadie had broken ribs and markings indicating she had been

beaten. Glenn Schubert compared hair standards taken from Sadie and a gray

sweatshirt from defendant's residence and found them to be "microscopically

consistent" and could have originated from the same dog. Schubert's conclusion was

entitled to more weight, he contended, because the hairs came from a mixed-breed

animal, which has "more unique" characteristics than a purebred animal.

              The jury was well aware of Gordon's participation in the burglaries, his

guilty plea, and the immunity he received in exchange for his truthful testimony. The

trial court instructed the jury that accomplice testimony was subject to suspicion, should

be viewed with caution, and should be carefully examined in light of the other evidence

in the case. The jury had the responsibility to determine the credibility of witnesses and

resolve conflicts in the evidence. A rational trier of fact could have found defendant

committed the burglary of Buck's Garage and animal torture in connection with the

death of Sadie.

                                         - 10 -
              Defendant, however, contends the evidence of his alibi defense

outweighed the State's evidence. "Even if a defendant denies his guilt and the defense

witnesses corroborate his alibi, his alibi defense does not, in and of itself, create a

reasonable doubt of the defendant's guilt." People v. Liner, 356 Ill. App. 3d 284, 298,

826 N.E.2d 1274, 1288 (2005). "Juries may reject uncontradicted alibi witnesses

[citations], and those whose testimony is contradicted. [Citations.] The familial ties of

the alibi witnesses may bring their veracity under scrutiny such that their testimony may

be rejected." People v. Garza, 92 Ill. App. 3d 723, 729, 415 N.E.2d 1328, 1334 (1981).

              In the case sub judice, defendant's alibi witnesses were related to him.

Joshua Crain is defendant's half-brother, Brandy Crain is his sister-in-law, and Terri

Singleton is his sister. Moreover, Joshua and Brandy Crain did not come forward until

shortly before trial. After being contacted by a private investigator, they claimed they

were mistaken as to the dates the crimes were committed and once believed they had

no testimony worth offering. Brandy testified the dates did not become important until

she and her husband talked about and looked through his notes concerning the

offenses. Her husband talked with someone and realized "he had his days wrong."

              A reasonable jury could find the testimony of defendant's relatives was not

credible and their delay in coming forward was to be viewed with skepticism. The

credibility of the witnesses and the weight to be given to their testimony were matters

within the province of the jury. A reasonable jury could have believed Gordon's

testimony and not that of defendant or his alibi witnesses and found him guilty beyond a

reasonable doubt.

                               B. Gordon's Prior Convictions

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              Defendant argues the trial court erred in allowing the State to inform the

jury that codefendant Gordon had pleaded guilty, contending the court failed to employ

the balancing test set forth in People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695

(1971). We disagree.

              Whether evidence is relevant and admissible is a matter within the trial

court's discretion. People v. Ursery, 364 Ill. App. 3d 680, 686, 848 N.E.2d 146, 152

(2006). A court's decision as to the admissibility of evidence

will not be disturbed absent an abuse of that discretion.
Tenney, 205 Ill. 2d at 436, 793 N.E.2d at 586.

              During opening statements, defense counsel stated that after being

charged with the offenses, Gordon "made a deal" and was willing to "point the finger" at

defendant and receive immunity for testimony against him. Defense counsel indicated

Gordon had "total immunity" and it "was only by coming up with the story about

[defendant] that he walks scot free." Further, all Gordon had to do was pick defendant

as the perpetrator and "he walked free."

              The State sought admission of certified copies of the common-law record

in Gordon's criminal cases relating to the burglaries as found in People's exhibit Nos.

17, 18, 19, and 20. The State argued defense counsel's opening statement asserted

that Gordon was given immunity to "rat out" defendant. The State contended it had a

right to respond to the "misleading" characterization.

              The trial court indicated the jury could be left with the reasonable

impression that the State chose not to prosecute Gordon because he was going to "rat

out" defendant. The court indicated the State should have the opportunity to explain to

                                           - 12 -
the jury that the prosecution of Gordon pertaining to the two burglaries ended because

his statements were suppressed and a plea agreement was reached. The court refused

to admit the exhibits but allowed a three-page summary of Gordon's case history pre-

pared by the State to be read to the jury.

              In this case, we find the trial court's decision to read the summary of

Gordon's case histories was not an abuse of discretion. Defense counsel's opening

statement left the jury with the impression that Gordon made a deal with the authorities

to blame defendant for the crimes in exchange for immunity. Further, counsel intimated

Gordon was given total immunity and walked away "scot free." Thus, defense counsel's

argument invited a response from the State as to the accurate facts surrounding

Gordon's criminal cases and testimony against defendant. Gordon was charged but did

not plead guilty to criminal trespass and misdemeanor theft until after his inculpatory

statements had been suppressed. Further, he did not get off "scot free," as he served

158 days in jail and received probation. The immunity he received was in exchange for

providing truthful testimony against defendant. "[A] defendant cannot complain about a

line of inquiry that he has invited." People v. Tolbert, 323 Ill. App. 3d 793, 805, 753

N.E.2d 1193, 1204 (2001). As the court found defense counsel's opening statements

regarding Gordon invited the State's response, we find no abuse of discretion in the

court's reading of the summary to the jury.

              Defendant concedes this case "does not precisely fit as one involving

impeachment under Montgomery." We agree and, based on the foregoing, we need not

address that argument. Defendant also argues the State's closing argument exceeded

the permissible use of a codefendant's guilty plea. However, defendant did not object at

                                             - 13 -
trial or include this issue in his posttrial motion. Thus, he has forfeited review of this

issue on appeal. See People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318,

324 (2005) (a defendant must object at trial and raise the issue in a posttrial motion to

preserve the issue for review on appeal).



                         C. Witness Statements as Impeachment

              Defendant argues the statements made by Matt Mason and John Crain

were not admissible as impeachment evidence because their testimony was not

damaging to the State's case. We disagree.

              Under Supreme Court Rule 238(a) (188 Ill. 2d R. 238(a)), the credibility of

a witness can be attacked by any party, including the party calling the witness.

                     "A court's witness, or any witness for that matter,

              cannot be impeached by prior inconsistent statements

              unless his testimony has damaged, rather than failed to

              support the position of the impeaching party. The reason for

              this is simple: No possible reason exists to impeach a

              witness who has not contradicted any of the impeaching

              party's evidence, except to bring inadmissible hearsay to the

              attention of the jury. Impeachment is supposed to cancel out

              the witness' testimony. It is only when the witness' testimony

              is more damaging than his complete failure to testify would

              have been that impeachment is useful." People v. Weaver,

              92 Ill. 2d 545, 563-64, 442 N.E.2d 255, 262-63 (1982).

                                           - 14 -
Whether a witness' prior statement is inconsistent with his trial testimony is a matter

within the discretion of the trial court. People v. Billups, 318 Ill. App. 3d 948, 957, 742

N.E.2d 1261, 1269 (2001).

                                    1. Mason Testimony

              In this case, Matt Mason testified he picked up John Crain and defendant

at a hotel and gave them a ride. During the ride, defendant indicated he was being

accused of killing a dog, but he denied doing it. Mason claimed he never told the

authorities that defendant committed the crime but was "stupid" for being in trouble.

Mason stated he never told officers that defendant had said he killed a dog by slamming

a hammer through its head.

              Commander Roger Newsome testified he listened to an interview of

Mason that was conducted by an agent with the Bureau of Alcohol, Tobacco, and

Firearms. Mason stated during the interview that defendant had told him he killed a dog

by slamming a hammer through its head. Mason also stated he would not testify in

court.

              Here, we find it was proper for the State to impeach its own witness.

Mason's testimony that defendant denied killing the dog significantly damaged the

State's case. The jury was entitled to determine Mason's credibility by hearing the

statements impeaching his testimony. We find no abuse of discretion.

                                    2. Crain Testimony

              John Crain testified defendant came to his house in Bradley during the

first two weeks of November 2002 because he was wanted in Pontiac. When the State

asked Crain whether defendant mentioned anything about a dog, Crain stated "not at

                                           - 15 -
that time. He told me that they were questioning him about a dog, but he didn't tell me

anything about a dog." Crain testified defendant had mentioned an incident around

June regarding his friends beating a dog. When asked if he told United States Marshals

in February 2003 about that incident, Crain stated, "No. I told them a way bigger story

than that." Crain asserted officers told him what to write.

              The trial court found Crain was "all over the place" in his testimony. The

court found him to be a hostile witness and stated he had testified inconsistently with his

prior statement. The State was then allowed to impeach Crain with a redacted version

of his prior statement that read:

                      "My brother Mike came to Bradley from Pontiac to lay

              low because of problems back home with the law[.] While

              staying in Bradley[,] more rumors came up of a dog being

              killed and him being involved[.] I asked[,] he said he was

              drinking[,] the dog wouldn't shut up so his friends beat it to

              quiet it."

              Here, Crain testified defendant did not tell him anything about the dog the

authorities sought to question defendant about. Crain denied defendant ever told him

he broke into a place in Pontiac or that he beat and killed a dog. Crain's testimony

exculpated defendant and was damaging to the State's case. The trial court properly

allowed the State to impeach Crain with his prior statement about defendant's

involvement with beating the dog. Thus, we find no abuse of discretion.

                                    3. Closing Argument

              Defendant contends the State exacerbated the alleged errors in closing

                                          - 16 -
arguments by referring to the prior inconsistent statements as substantive evidence.

However, defendant made no objection to this portion of the State's closing argument

and did not raise the issue in his posttrial motion. Thus, he has forfeited review of this

alleged error on appeal.

                                    III. CONCLUSION

              For the reasons stated, we affirm the trial court's judgment.

              Affirmed.

              APPLETON and MYERSCOUGH, JJ., concur.




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