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People v. Rush

JUNE 2, 1970.




Appeal from the Circuit Court of Cook County; the Hon. JACQUES F. HEILINGOETTER, Judge, presiding. Judgment affirmed.


Willie Rush was found guilty, following a bench trial, of the offense of attempt robbery (Ill Rev Stats (1965), c 38, § 8-4). Judgment was entered on the finding and he was sentenced to a term of not less than one nor more than seven years in the Illinois State Penitentiary. In this appeal he contends that the trial court erred in denying his motion to strike certain testimony and that he was not proven guilty beyond a reasonable doubt.

Roterick McLaughlin, a Chicago Police Officer, the first witness called by the prosecution, testified as follows. At approximately 2:30 a.m. on the morning of March 5, 1967, he left his home to procure some medicine for his infant son. He went to a store known as the Big B, located at Central Park and Roosevelt Road in the City of Chicago, but was unable to procure the drugs which he sought. On his return, he parked his car in the vicinity of 3150 West Harrison, some three city blocks from his home, and proceeded toward home on foot. He explained that the car was left behind because it had been subject to vandalism when parked near his home.

While walking toward his home, he was accosted by a male figure who had been standing in a doorway at 3203 West Harrison. The man called to him and when witness turned, the man, pointing an automatic pistol at witness, said, "This is a stickup." Witness then announced his office as a Chicago Police Officer and drew his service revolver. The man stepped back, stating that he would shoot, then fired one shot and retreated up the staircase of the building in front of which he had been standing. Witness returned fire, shooting at the fleeing man three times.

Hesitating before following the man up the stairs, McLaughlin heard the sound of glass breaking. When he did climb the stairs, he observed that the glass in a door at their crest had been broken and there he found an automatic pistol. McLaughlin did not conduct an exhaustive search of the apartments on the second floor of the building into which his assailant had fled. He did, however, proceed through the building via the second-floor hallway and exit through the rear door. He was unable to find the assailant.

McLaughlin further testified that he then returned to the front of the building where he spoke with police officers Bolton and Vavrin. He sat in their car while they prepared a report of the incident and gave them a description of the defendant. At trial McLaughlin described the assailant as being five feet, nine to five feet, ten inches tall and weighing one hundred eighty to one hundred ninety-five pounds. He appeared to be wearing a wig which had a blond streak in it, and wore lipstick.

Later that same morning, witness went to Illinois Research Hospital in response to a call. There he observed the defendant and identified him as the assailant.

Laddie Vavrin, the second witness called by the prosecution, testified as follows. On March 5, 1967, he was a Chicago Police Officer assigned to the Eleventh District. At approximately 3:30 a.m. on that date he and his partner were in a squad car proceeding south on Kedzie Avenue near Harrison when they heard shots being fired. He observed a man with a gun at the front of a building located at 3203 West Harrison. After being ordered to drop the gun, the man identified himself to Vavrin as Officer McLaughlin of the Chicago Police Department. After a short conversation with McLaughlin, witness proceeded to the rear of the building where he observed fresh footprints in the snow. He followed the footprints to Flournoy Street where they mingled with other prints. Witness then returned to the front of the building where he had encountered McLaughlin.

Witness, his partner, and McLaughlin then returned to the squad car where witness took a statement from McLaughlin, including a description of his alleged assailant. Thereafter, McLaughlin left the car and witness and his partner resumed their regular patrol.

An hour to an hour and one half later, witness and his partner, in response to a radio call, drove to Illinois Research Hospital to investigate a report that an individual was there being treated for gunshot wounds. Upon arrival, witness observed defendant who was being treated for such wounds. Vavrin asked defendant what had happened, to which defendant responded that he had been shot while in the vicinity of Pulaski and Flournoy Streets, when he attempted to flee from three would-be robbers. (At this point defendant objected to the testimony on Miranda grounds and moved that it be stricken. The motion was denied.)

Vavrin also testified that while at the hospital he was aware that the defendant closely resembled the description given him by Officer McLaughlin. Vavrin described Rush, as he viewed him in the hospital, as having black hair with a section of light colored hair at about the center of his forehead, round face, medium build, and as having smeared lipstick on his mouth. Finally, Vavrin testified that he was separated from his partner, Officer Bolton, once at the hospital, when the latter left the emergency room to phone Officer McLaughlin. The defendant was not in custody at the time witness conversed with him.

Elizabeth Dawson, first witness called by the defense, testified as follows. On March 5, 1967, she lived in the building located at Harrison and Kedzie in the City of Chicago. She could not recall the exact street address. At approximately 2:30 a.m. on that date, she was at home and preparing to retire when she heard three shots fired and then heard someone call for help. She recognized this voice to be that of Willie Rush. She went into the hall and found Rush leaning against the wall. She knew that he was injured and could see that he was bleeding but did not ask him what had occurred. Rush asked her for help and she took him to her room where she gave him a towel. While in the hall, she observed a number of other people, also in the hall, but did not recognize any of them. She did not see a police officer in the hall nor did she see anyone with a gun. The defendant remained in her room for approximately fifteen minutes and then left via the rear door. Miss Dawson also testified that she had known the defendant for two years but had never known him to wear lipstick or other makeup or to have a blond streak in his hair.

Finally, Miss Dawson testified that she was employed as a cashier at the Big B Super Market and was so employed on March 5, 1967. Due to her employment she was familiar with the goods sold. Aspirin, but no other drugs, was sold at the Big B.

Velma Rush, an aunt of the defendant also called on his behalf, testified as follows. On March 5, 1967, she went to a hospital where she observed the defendant as he was being treated for gunshot wounds. While there she engaged in a conversation with the witness McLaughlin. During the course of the conversation she ...

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