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People v. Gilyard

APRIL 27, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

SHEADRICH GILYARD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

In a jury trial defendant was found guilty of the offenses of armed robbery and aggravated battery. The court sentenced him to concurrent terms of ten to twenty years for armed robbery and five to ten for aggravated battery.

On appeal defendant contends that (1) the trial court erroneously denied his motion to suppress certain evidence; (2) prejudicial error was committed in several evidentiary rulings of the trial court; (3) the complaining witness was allowed to arouse the sympathies of the jury by displaying his physical disabilities; (4) improper argument to the jury by the prosecutor was allowed; (5) it was improper for the jury to begin deliberation before the cause was delivered to them; and (6) the sentences were improper.

On January 10, 1967, at approximately 8:30 p.m., a man (subsequently identified as defendant) entered a drugstore three times and asked for a certain narcotic. On each of the three occasions the complainant, Oscar Norman, an apprentice pharmacist, told him that they did not have any of that medication. After the third refusal defendant pulled out a small automatic pistol. Norman knocked the pistol from defendant's hand and reached into his own hip pocket for his own pistol (a .38 Smith & Wesson snub-nosed, chrome-plated revolver). During a struggle between Norman and the defendant for Norman's pistol, a shot was fired from it. An accomplice of defendant took Norman's pistol and struck him on the forehead. Both assailants then fled from the store. Norman had blood all over his forehead, his coat was torn and his trousers were completely torn off, and his pistol was missing. Norman called his brother and the police and went to a hospital where he received treatment for his injuries.

At the trial Norman positively identified the defendant as the man who entered his store and robbed him. He testified that defendant was wearing a pair of green gloves, a checkered gray hat, a red suede jacket, a scarf tied around his head, and his hair was processed. A gray checkered hat and a light green glove were identified by Norman as those worn by his assailant and were admitted into evidence.

Norman further testified that on February 3, 1967, he saw defendant inside Smitty's Lounge at 3713 Roosevelt Road. He made contact with the police and entered the lounge with them. He pointed out defendant to the police, and defendant was arrested and taken to the police station. At that time defendant was wearing a red suede jacket and his hair was still processed.

A customer, Mrs. Mary McCallum, testified that she was in the pharmacy during the robbery. When she first entered she was four or five feet away from the defendant, and he was wrestling with Norman. She started to leave when another man stopped her and said it was a holdup and told her to walk to the back of the store, which she did. She was within two and one-half feet of the defendant, and she continued to look at him and stepped into a little washroom. From the open doorway she saw the other man go over to Norman and defendant and "come down on Mr. Norman's head." The two men then ran out. Norman was "bloody all over." She positively identified the defendant as the assailant and said that he was wearing a grayish hat and a reddish brown jacket.

Other witnesses for the State included Police Officers James Ball, Edward Owczarek and Walter J. Zamolewicz. Officer Ball testified that on January 11, 1967, he had seen the defendant on the passenger side of a car. A woman named Barbara Price was sitting in the front seat between defendant and the driver. A pistol was taken from the purse of Barbara Price, which he inventoried together with four bullets and the serial number of the pistol. He was shown People's Exhibit 3, a .38 Smith & Wesson snub-nosed, chrome revolver, and identified it as the same revolver taken from Mrs. Price. He said, "The serial number on the butt of the gun and the serial number on my inventory report is the same." At the trial Norman was shown this revolver (Exhibit 3) for identification, and he testified that the revolver was identical in every respect to that of the weapon taken from him on January 10, 1967. He said, "Definitely. It is my gun." He stated that before it was discharged during the robbery, the gun had contained five bullets.

Officer Owczarek testified that on February 3, 1967, he had occasion to be in Smitty's Tavern with Oscar Norman, and that Norman pointed out defendant from approximately twenty-five males present. The defendant was wearing a reddish brown suede jacket and had processed hair. The defendant was taken to the 11th District police station.

Officer Zamolewicz testified that on February 3, 1967, he interviewed the defendant and Norman in the presence of each other at the 11th District police station. He informed defendant that he was being charged with armed robbery of a drugstore on January 10, 1967, and after warning defendant of his constitutional rights, the defendant stated, "I didn't do it. I was in Springfield, Illinois, and I didn't leave there until the 12th or 13th of January."

Witnesses for the defense included the defendant and Herbert H. Harris. Defendant testified in his own behalf that he had never robbed or struck Norman on the head. Also, he didn't recall if he was in Chicago on January 10, 1967. Herbert H. Harris, a gunsmith who had been a distributor for Smith & Wesson for thirty years, testified that the Smith & Wesson revolver was identical to a million other revolvers that had been made, and the only way to tell one revolver from another was by the serial number.

Initially considered is defendant's contention that Norman's Smith & Wesson revolver (State's Exhibit 3) should not have been admitted into evidence. He asserts that the introduction of the pistol into evidence violated the Fourth Amendment prohibition against unreasonable searches and seizures. The record shows that at the hearing of a pretrial motion to suppress the pistol as evidence, defendant was the sole witness. He testified that on January 11, 1967, one day after the alleged robbery, he was riding as a passenger along with Barbara Price and another man, in a car driven by McKinley Shumate. Shumate made an improper turn and was stopped by two uniformed policemen. The policemen asked Shumate for identification and his driver's license, and when Shumate was unable to produce a driver's license, the officers ordered the male passengers out of the car and conducted a "pat down." One of the officers leaned over the front seat and opened Barbara Price's purse, looked in, and found a .38 caliber Smith & Wesson special chrome-plated, snub-nosed revolver, containing four cartridges. No weapons were found on defendant or the other passengers. No one tried to strike the police officers or offered resistance to them. Barbara Price, Shumate and defendant were brought to a police station and charged with disorderly conduct. After defendant's testimony and the argument by counsel, the trial court denied the motion to suppress.

Defendant argues that the police were not justified in conducting a search when making an arrest for a traffic violation. Also, even if they were justified in searching the driver they were not justified in searching the passengers. Authorities cited include People v. Cassell, 101 Ill. App.2d 279, 243 N.E.2d 363 (1968); People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433 (1960); and United States v. Di Re, 332 U.S. 581 (1947).

We agree with the State that the instant search and seizure were reasonable and proper. The failure of Shumate to produce his driver's license at the request of the arresting officers was a circumstance sufficient to warrant an officer's reasonable belief that he may be dealing with a criminal rather than a mere traffic violator. Under such circumstances the search of the person arrested and those who were passengers in the car was proper and justified for the purpose of protecting the arresting officers from attack. See People v. Turner, 91 Ill. App.2d 436, 448, 235 N.E.2d 317 (1968). We find no error here.

Defendant further contends that the Smith & Wesson pistol was erroneously received into evidence even though it was neither found in defendant's possession nor adequately identified. Defendant states, "It was no different from a million other pistols of the same type, and there is no reasonable basis to believe that it was the pistol taken in the robbery. . . . Thus the only way to identify one particular pistol, of the million which have been made, is by the serial number. The complainant did not know the serial number of the pistol taken by the robber. He had no means of identifying it." Defendant's authorities include People v. Smith, 25 Ill.2d 428, 185 N.E.2d 150 (1962); People v. Evertson, 310 Ill. 397, 141 N.E. 696 (1923).

The State argues that "even where stolen property is devoid of distinctive characteristics it will be admissible where sufficient circumstances connect it to the defendant and the crime, where a witness identifies the property as similar in appearance to the property stolen." People v. Tilden, 50 Ill. App.2d 354, 200 N.E.2d 33 (1964); People v. Mikka, 7 Ill.2d 454, 131 N.E.2d 79 (1955); People v. Jones, 22 Ill.2d 592, 177 N.E.2d 112 (1961).

In People v. Tilden, the defendant contended that two eyewitnesses to a murder could not sufficiently identify the murder weapon since they could not testify as to the make or model of the gun. It was held that where the witnesses had "sufficient exposure" to the weapon, they could identify it by appearance alone, ...


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