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People v. Perry

MARCH 15, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT T. PERRY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:

On June 2, 1967, two petitions were filed in the Juvenile Division of the Circuit Court of Cook County against Robert T. Perry, a minor. These petitions charged Perry with delinquency in that he committed the offense of aggravated assault upon one Michael Dunn and the offense of aggravated battery upon one Joyce Wilson. After an adjudicatory hearing, Perry was adjudged delinquent and a ward of the court. He was subsequently committed to the Illinois Youth Commission.

On appeal, Perry contends that: (1) the lower court erred by allowing the State to prove its case with a preponderance of the evidence rather than beyond a reasonable doubt; (2) the pre-trial identification by Linda Mason, a State's witness, was improper and prejudicial; (3) the lower court erred by refusing to consider polygraph evidence at the dispositional hearing; and (4) the dispositional hearing was improperly conducted.

At the adjudicatory hearing, Joyce Wilson, age 15, testified that she and Linda Mason were returning from a neighborhood bowling alley about 10:30 P.M., May 28, 1967, when they passed an alley near 82nd and South Park Avenue, in Chicago. Two boys were standing in the alley and as the girls passed, a gun went off and Miss Wilson was shot in the upper right shoulder. Miss Wilson fell to the ground and her girl friend "stood in the alley calling the accused's name." Miss Wilson did not recognize the person who shot at her. She was later confined in the St. George Hospital and testified that while she was in the hospital the police brought Robert Perry and his father into her room.

Linda Mason testified that she saw Robert Perry standing in the lip of the alley as she and Joyce Wilson were passing. She knew Robert Perry on sight and had seen him many times before. Perry was standing about three yards from her when she recognized him. She had seen him in the bowling alley earlier that evening. The girls passed Perry and when they were about three-fourths of the distance across the alley, shots came from the alley and Joyce Wilson was shot. After the shots, Miss Mason looked in the alley, which was well lighted, and "saw Robert Perry and another boy running down the alley." She then took Miss Wilson home and the police were called. When the police arrived, she informed them that it was a boy by the name of Perry who had fired the shot. She did not know Perry's first name at this time. Sometime later, she went to the police station and identified Perry.

Joyce Wilson was recalled and testified that she had been acquainted with Robert Perry and had never had any trouble with him.

The State then rested its case and the respondent moved for a directed verdict, asserting that the State had not preponderated in its case. The motion was denied and the respondent proceeded to call his witnesses.

Charles Knox, a neighbor of the respondent, testified that he looked out his front window about 10:15 P.M., May 28, 1967, and saw the respondent entering his house at that time. He also testified that Perry was a good boy and had never been involved in any trouble.

Tanner T. Perry, the respondent's father, testified that he had arrived home about 10:09 P.M. on May 28, 1967, and his son, Robert, came home about two minutes later. Mr. Perry indicated that his son did not leave the house after that except to take his dog into the yard.

Eunice Perry, the respondent's mother, testified that she had been at her sister's home on 73rd Street on the night in question. Her husband picked her up just after the 8:00 P.M. movie on television had ended and they went directly home, arriving there about 10:05 or 10:10 P.M. Her son, Robert, came home about two minutes later and left the house only to take his dog into the yard.

Dwight Franklin testified that he and the respondent had been together most of the day and were at Perry's house from 7:00 to 9:30 P.M. on the night in question. The two boys then went to a friend's house and later went to the bowling alley. Franklin stated that they left the bowling alley about 10:00 P.M., walked to the corner of 81st and South Park and separated. The witness did not see Perry enter his house although he testified that Perry had expressed an intention to go right home after they parted company.

Robert Perry, testifying on his own behalf, stated that he and Dwight Franklin visited a friend about 9:35 P.M. on the night of May 28th and left for the bowling alley about 9:50 P.M. He saw Joyce Wilson and Linda Mason there but did not converse with them. He stated that he and Franklin left the bowling alley about four minutes later and walked to the corner of 81st and South Park where they briefly chatted and then parted company. Perry indicated that he went directly home, let his dog out for a short time and then went to bed. He denied having participated in the incident involving the shooting of Joyce Wilson.

The State called Michael Dunn as a rebuttal witness.

Mr. Dunn testified that he was on the corner of 81st and Calumet about 10:30 P.M. on the night in question. At that time he saw Robert Perry standing about five feet from him. Perry had been standing across the street from Dunn and was with another boy. Perry crossed the street, came up to Dunn and said something about money. Suddenly a gun went off and, according to Dunn, "it was directly in front of me. He was standing a little to the left and I saw the flash and everything. Right then I didn't realize it was even in his hand until it went off * * *. I looked at him and I sort of got myself together and then I ran across the street."

After the testimony of Albert Leak, a character witness for the respondent, the court found for the State and adjudicated the respondent a delinquent. The cause was then set for a dispositional hearing.

At the dispositional hearing, respondent's counsel sought to introduce evidence concerning a polygraph examination to which the respondent had voluntarily submitted. This examination had apparently been made shortly after the adjudicatory hearing had been concluded. The State's objection to the introduction of such evidence was sustained and respondent's counsel then made the following offer of proof:

"* * * if a Mr. Robert J. Abson of John Reed and Associates were to testify here in court, or if his report bearing his signature was accepted in court it would show that there were four questions placed to the accused. First one being, `On May 27, which is the date of the incident, 1967, at or about 11:00 P.M. were you at Eighty-Second at Calumet?' His answer was `No.' The second question was `On May 27, 1967, did you shoot Joyce Wilson?' Answer, `No.' Third question, `Were you at home when Joyce Wilson was shot?' Answer, `Yes.' Fourth Question, `Did you shoot a revolver on the night of May 27, 1967?' Answer, `No' — and further, if Mr. Abson * * * were asked his opinion or if the report were accepted into evidence it would indicate that the opinion of the examiner, based upon the Polygraph Exams, was that this boy was telling the truth on all four questions."

The State, after objecting to the respondent's offer of proof, then offered in aggravation the testimony of Michael Dunn, who was present in court, ...


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