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People v. Ervine

SEPTEMBER 24, 1965.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES LEE ERVINE, DEFENDANT-APPELLANT.



Appeal from the Criminal Court of Cook County; the Hon. ROBERT L. HUNTER, Judge, presiding. Affirmed.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 20, 1965.

The indictment charges defendant with robbery (Count I) and aggravated battery (Count II). *fn1 Ill Rev Stats (1961), ch 38, §§ 18-1 and 12-4. After a bench trial defendant was found guilty on both counts and was sentenced to the penitentiary for seven to ten years. Defendant appeals on the grounds that the State failed to prove his identification beyond a reasonable doubt; and that the court admitted expert testimony which was incompetent, or, in any event, was outweighed by expert testimony on defendant's behalf. On the basis of these grounds defendant seeks a reversal. In the alternative he asks for a new trial because of the court's refusal to grant certain discovery requested by defendant during the trial.

The evidence relating to the occurrence of the crimes is not in dispute. On May 24, 1963 Mabel Gaskell was walking on North Shore Avenue at about 5:45 a.m. on her way to work. It was daylight. A man walking in the opposite direction on the same sidewalk was approaching her. As he passed he grabbed her across the mouth with his left hand and threw her to the ground. He said, "If you scream, I'll kill you." Mrs. Gaskell was on her back on the sidewalk in a position to see the man, and did watch him as he bent over her in working with his right hand to free her purse from her arm. The shoulder-type purse contained money, cigarettes, keys, etc. The man managed to get possession of her shoulder bag, stomped on her face, and ran away. She screamed for help.

Ben Levitsky heard the scream as he was sitting at breakfast in his kitchen. He went to the back porch of his second-floor apartment. There he saw a man run through a gangway to the alley. He stopped at the gate, looked up the alley in both directions and, while doing so, stuffed something under his jacket. Then he ran across the alley and through another gangway where he got into the driver's seat of a blue car and drove away.

The police were called and they and Levitsky arrived at the scene within a few minutes. Mrs. Gaskell related the occurrence to the police; said she had been robbed of $40 to $45; and gave a description of her assailant. The police were also given a description of the automobile Levitsky had seen.

At 6:45 a.m. defendant was arrested in his 1954 blue Chevrolet. He was searched, and $47 was found on his person. He had a red smear on the palm of his left hand. Later that morning, in a lineup of three men, Mrs. Gaskell identified defendant as her robber. She made a similar positive identification at the trial. Defendant did not take the stand, but his wife testified that he left home that morning at about 5:30 a.m. After judgment of guilty, at a presentence hearing on matters in mitigation and aggravation, it was disclosed that defendant had five previous felony convictions.

As will be explained later in this opinion, the only essential point to be considered is defendant's argument that the proof of defendant's identification as the robber was not established beyond a reasonable doubt.

Levitsky testified that he saw the running man only from the back and did not see his face. He described his hair as black, straight, long and slick.

Mrs. Gaskell testified that at the scene of the crime she told officer Walsh that her robber had "black, straight, long hair." She also testified that his hair was long when she saw him in the lineup. However, when she was shown a police picture of defendant, taken at the station after his arrest but before the lineup, she said it showed him to have shorter hair than on the two occasions when she had seen him that day. She also said that in the picture defendant's hair was "combed different"; that at the time of the robbery "it was up in a pompadour and a heavy bush."

Officer Walsh testified that at the scene Mrs. Gaskell had told him that her assailant had "sort of an odd accent, other than Chicago." He said further, "We couldn't pin down what type it was." He, therefore, noted in his report that the offender "had a foreign voice." At the trial Mrs. Gaskell denied having said that the robber had a "foreign voice." She testified that when he had said to her, "If you scream I'll kill you" (the only time she heard him talk) he spoke with approximately the same accent as she did. Since, as has been mentioned, defendant did not testify, it was not established at the trial whether defendant did or did not have a strange accent. Under that circumstance, the point raised by defendant as bearing on the question of identification does not, in fact, do so. It bears only upon the credibility of Mrs. Gaskell as a witness.

Further on the matter of identification, both Levitsky and Mrs. Gaskell had given to the police descriptions of the robber's clothing (light jacket, dark trousers) which accurately described the clothes defendant was wearing when arrested. The description given to the police also included: height, 5'8"; age, 19 to 25 years; weight, 145 pounds; automobile, old and blue. As to each of these matters the description was also borne out in fact.

Evidence was also introduced by State witnesses to show that three samples of the red smear taken from defendant's left palm and one from Mrs. Gaskell's lipstick were tested in the Police Department Crime Laboratory. The State's expert witness testified without objection that in his opinion all four samples were lipstick, and that they were all similar in physical properties and in color. *fn2 On cross-examination the witness conceded that the physical appearance, waxy nature, and brilliant color (produced by eosin dyes) of the substances could have been present in materials other than lipstick. He also conceded that there could be many brands of lipstick with properties which would test similar to the scrapings from defendant's hand. These concessions, however, do not, in our opinion, weaken substantially the evidence that the red smear on defendant's palm could have been acquired while holding his hand over Mrs. Gaskell's mouth in the course of the robbery. This would have been consistent with her description of the crime.

An interesting parallel may be found in the minimum of specificity required in the admissibility of testimony identifying a gun as the one used in a robbery. For example, in People v. Pittman, 2 ...


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