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People v. Lewis

MAY 30, 1972.

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

v.

MICHAEL LEWIS, A/K/A MIKE O'FLYNN (IMPLEADED) ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. SAUL A. EPTON, Judge, presiding.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:

The defendants, Michael Lewis and Robert Lee Brown, were indicted with one Benjamin Branch (See People v. Branch, 6 Ill. App.3d 107, filed May 30, 1972) for armed robbery, a violation of Ill. Rev. Stat. 1969, ch. 38, par. 18-2. Following a jury trial, defendants were found guilty as charged and were each sentenced to a term of years in the Illinois State Penitentiary.

On appeal, defendants present three contentions:

(1) That they were denied their fundamental right to cross-examine the witnesses against them;

(2) That they were denied a fair trial and due process of law when the prosecution introduced before the jury certain evidence of narcotics violations and addiction which was unrelated to the offense for which they were being tried;

(3) That they were not proven guilty beyond a reasonable doubt.

The evidence adduced upon the trial disclosed that on February 27, 1970, at approximately 6:00 A.M., Wilbur Miller, the complaining witness, was walking west on Lake Street toward Austin Boulevard, in Chicago. As Miller reached 5700 West Lake Street (about three blocks east of Austin Boulevard), Defendant Lewis approached from behind and announced, "This is a stickup." Lewis then held a gun in Miller's face and directed him into a gangway between two nearby buildings. Lewis was joined at this time by Defendant Brown and Benjamin Branch. After the four men entered the gangway, according to Miller:

"They started fumbling around with my overcoat and trying to get it unbuttoned and I got nervous because the gun was shaking in front of my face so I unbuttoned it myself, I don't know who grabbed the wallet * * *. I asked them to leave the wallet and they threw it on the ground, they took out my money [$6.00] and threw the wallet down * * *. They told me to lie down on the ground * * *. Lewis said he would kill me if I didn't * * *. I did what he told me * * *. They ran away [east on Lake Street]."

Miller lay on the ground for about two minutes and then, after retrieving his wallet, ran to a nearby restaurant, phoned the police and reported the incident. A short time later, a police officer arrived at the restaurant and informed Miller that three suspects had been arrested. Miller accompanied the officer to the corner of Madison Street and Lotus Avenue, about seven blocks away, and identified the three men being held there by the police. Approximately fifteen minutes elapsed between the time of the robbery and the time of the identification.

As indicated above, defendants have advanced three contentions for consideration by this court. In our view, however, we need consider only the second contention because our careful review of the record reveals it to be a meritorious one. In essence, defendants contend that they were unfairly treated at trial because highly inflammatory, prejudicial and immaterial evidence of narcotics violations was put before the jury. The record supports defendants' contention.

During opening argument, the prosecutor made the following comment:

"* * * Meanwhile, of course, the three defendants had been searched, two of the defendants had nothing of consequence on them, on the person of the third there was found $6, a five dollar bill and a one dollar bill which was the denominations taken from the wallet of Mr. Miller and he'll so testify. Also taken from the person of one of the defendants was two narcotic needles. * * *" (Emphasis added).

Again during opening argument, the prosecutor referred to the hypodermic needles, saying, "So they [police] had found the money in the same denominations and they had found the needles and they found the gun fifty feet from the person of the three defendants * * *." (Emphasis added). In the course of the prosecution's direct examination of a police officer, the following colloquy occurred:

"Q. All right. Did you have occasion to search the defendant Brown?

A. Yes, I did.

Q. And what if anything did you find on the defendant Brown?

DEFENSE: Object to this and ask to be heard * * * [Outside the hearing of the jury] This will bring into question * * * if the answer from this officer is going to be what I think it is going to be it is going to involve a hypodermic ...


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