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People v. Laurry

MAY 3, 1972.

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

v.

GUS ODELL LAURRY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH E. WILSON, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The defendants, Gus Odell Laurry and Willie Summer, were indicted on a charge of armed robbery. After a trial by jury, they were convicted and each was sentenced to serve five to fifteen years in the penitentiary.

On appeal, the defendants contend (1) the contents of a police radio communication stating "robbery in progress" was erroneously admitted into evidence, (2) remarks of the trial judge during the closing argument of the defense prejudiced them and invaded the fact finding responsibility of the jury; and (3) attempted cross-examination of a defense witness concerning possible immoral conduct on the part of Willie Summer denied him a fair trial.

Even though the defendants do not question the sufficiency of the evidence to sustain the conviction, it is necessary to briefly set forth the facts in order to place the contentions in a proper perspective. Sometime between 1:00 A.M. and 2:00 A.M. on July 21, 1969, Molli Todd and Kenneth Taylor were returning to their homes after a date in downtown Chicago. As they were walking in a southerly direction on Pulaski Avenue, they passed and greeted the defendant, Gus Laurry, whom they had seen about the neighborhood. They continued walking and then turned east onto 19th Street. After walking a short distance, a man ran in front of them and forced them at gunpoint into an alley and then into a gangway. As the robber was taking money, a wristwatch, and three rings, he was joined by a second person. The second man struck Taylor on the head with a board, and the initial assailant forced Miss Todd down the alley. The two robbers fled upon the arrival of the police. Willie Summer at the time of his arrest was wearing one of the rings taken in the robbery. On August 13, 1969, both Taylor and Miss Todd identified the two defendants from a lineup. At trial, Willie Summer was identified as the man who forced Taylor and Miss Todd into the alley, and Gus Laurry was identified as the other man.

• 1, 2 The defendants first contend that the trial judge erroneously admitted testimony concerning the contents of a police radio communication. Raymond Glemke of the Chicago Police Department was called as a witness for the defense. On cross-examination, Officer Glemke testified that he received a message over the air directing him to 3956 19th Street. He was then asked, "What was the message over the air?" and he responded, "Robbery in progress." This testimony was admitted over objection. It was hearsay and should not have been received into evidence. (People v. Thompson, 128 Ill. App.2d 420, 263 N.E.2d 124, People v. Hazen, 104 Ill. App.2d 398, 244 N.E.2d 424.) The erroneous admission of evidence does not necessarily constitute reversible error as is pointed out in People v. Pelkola, 19 Ill.2d 156 at 162-3, 166 N.E.2d 54 at 58:

"Error in the admission of evidence is harmless where the facts involved are established by other competent evidence, [citations] particularly where such other evidence is conclusive of the issue of the guilt of the accused [citations]. Again we have said that whether the admission of incompetent evidence is sufficient ground to require reversal depends on the facts of each case, [citations] and have held that where the record contains sufficient competent evidence to establish the guilt of the defendant beyond reasonable doubt, the judgment will not be reversed for error in admitting evidence unless it can be seen that the error is prejudicial. [Citations.]"

• 3 The statement "Robbery in progress" in the instant case tends to show that a robbery actually occurred. The fact of the robbery, however, was clearly demonstrated without contradiction from the defendants by the testimony of the two victims. Both Molli Todd and Kenneth Taylor testified to the facts and circumstances of the robbery, and both were available for full and complete cross-examination. The erroneously admitted evidence showed only that which had been established by other competent evidence, and its admission did not prejudice the defendants. See: People v. Davis, 46 Ill.2d 554, 264 N.E.2d 140, People v. Grundeis, 413 Ill. 145, 108 N.E.2d 483, People v. Thompson, 128 Ill. App.2d 420, 263 N.E.2d 124.

• 4 The defendants next contend that they were denied a fair trial when the trial judge invaded the province of the jury and made a prejudicial finding of fact; which finding was incorrect. During the closing argument of defense counsel the following exchange occurred:

"Mr. Bloom [Assistant Public Defender]: * * * You have to be able to say without qualification or without hesitation that both of these men were the individuals that committed that crime that evening in that dark alley.

Mr. DiVito [Assistant State's Attorney]: Objection, your Honor, there is no showing that the alley was dark.

Mr. Bloom: There were no lights in the alley at that time.

Mr. DiVito: Objection.

The Court: Sustained.

Mr. DiVito: It is ...


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