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People v. Morgan

FEBRUARY 26, 1970.




Appeal from the Circuit Court of Cook County; the Hon. JOHN C. FITZGERALD, Judge, presiding. Judgment affirmed.


Defendant was charged with the crimes of unlawful possession of a narcotic drug and armed robbery, to which he pleaded not guilty. The jury found him guilty in manner and form as charged in the indictment and the court sentenced him to serve a term of not less than one year and not more than ten years in the penitentiary. The record and briefs submitted by the appellant and appellee are silent as to what action, if any, was taken with reference to the unlawful possession of a narcotic drug charge and appellant does not raise it on appeal. We are therefore not considering it. Defendant presents four issues on appeal:

1. Admission of a statement allegedly made by the defendant without the court first determining the admissibility of said statement.

2. Identification of the defendant by the complaining witness at the show-up and at the trial were the result of a procedure so suggestive that defendant was denied due process.

3. Defendant was not proven guilty beyond a reasonable doubt.

4. Court's instruction, which assumed controverted facts to be true, was in error.

On January 6, 1967, at about 9:15 a.m., a man entered a grocery store of Mrs. Lorraine Schuett at 1027 Sherman Avenue, Evanston, Illinois. She was alone. He placed a white handkerchief on his face, drew a pistol and approached Mrs. Schuett, pointing the gun at her. She backed away from him and lay down on the floor behind a counter. She heard the cash register open and close. He stood near her over the counter. She heard a click of the gun. He told her to lie there for ten minutes or he would be back. Mrs. Schuett testified, "After the robber left the store, I noticed some money was gone. Between fifty and sixty one-dollar bills and two five-dollar bills."

Mrs. Schuett called the police, giving them a description of a man who was a negro, wearing a narrow brim dress hat and a light beige overcoat, dark dress trousers, black shoes and stockings, and sunglasses. Officer Edward McCarthy and his partner received a call about the robbery and proceeded to the Main Street "L" station, which is two to three and a half blocks away from the store which was robbed. McCarthy saw a man on the "L" platform who fit the description of the robber and arrested him. Upon searching him the officer found a revolver. The alleged robber, who is now the defendant, was taken to the Schuett store about 9:30 a.m., where Mrs. Schuett identified him as the man who robbed the store. She noted at the time that the defendant was not wearing sunglasses. The officer found a pair of sunglasses on the person of the defendant, which Mrs. Schuett identified as those worn by the robber.

When the defendant was taken to the police station he had in his possession $67.15, consisting of fifty three one-dollar bills and two five-dollar bills and some change. He told Officer McCarthy about 11:00 a.m. that morning that he had won the money in a card game.

At the trial, defendant denied that he robbed the grocery store. He testified that he came to Evanston on the morning of January 6, to look for a part-time job. He was employed by the Cook Chocolate Company in Chicago from 10:00 a.m. to 7:30 p.m. He did not know the name of the company where he tried to get the part-time employment. Actually, he did not go in to inquire, because he met a man who told him they were not hiring. He testified that the money he was carrying was part of his paycheck, which he had cashed two days before, and the predominant amount consisted of singles. He admitted carrying the gun, explaining that it was for self-protection.

We are mindful of the fact that the prosecution and defense stipulated that the pretrial statements of the defendant to Officer McCarthy would not be offered in evidence. However, after defendant denied that he had told Officer McCarthy that the money found on his person was the proceeds of a check he had cashed two days earlier and was not the money he said he had won in a card game, the defendant opened the door to a conversation to which he is now objecting on appeal. The State then called Officer McCarthy in rebuttal. Furthermore, prior to McCarthy's rebuttal testimony, the Assistant State's Attorney informed defense counsel that McCarthy would be called to refute the defendant's testimony. In our judgment, defendant's statement was not an admission of the offense. Actually, defense counsel did not object to McCarthy's rebuttal. No motion to suppress defendant's statement was made, nor was there a request for a hearing on the admissibility of McCarthy's rebuttal testimony. The record shows the following rebuttal testimony of Officer McCarthy:

Q. "And, Officer McCarthy, you testified on direct examination that the defendant had $67.15 on his person?"

A. "That's correct."

Q. "Did Mr. Morgan make any statements regarding where he had ...

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