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People v. Matthews

OCTOBER 4, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND HALL, Judge, presiding.


Defendant, Raymond Matthews, was convicted of armed robbery after a jury trial and was sentenced to the Illinois State Penitentiary for a term of not less than 20, nor more than 40 years. Defendant raises the following issues for review:

1. Whether the introduction into evidence of defendant's gun was proper;

2. Whether the defense was improperly restricted on cross-examination; and

3. Whether testimony regarding defendant's prior conviction was proper.

The facts are as follows:

Near midnight on August 18, 1969, Chicago Police Officers responded to a robbery in progress call at Triangle Liquors, 12717 South Halsted Street in Chicago. The tavern is on the first floor of a two-story apartment building, the second floor of which was occupied by the owners of the tavern, Leona and Walter Ostrowski and their son and daughter, Ronald and Margaret Ostrowski.

Frank Kulakowski, a patron of the tavern testified that after letting some other patrons out of the locked front door, he was closing the door when defendant forced his way in, stuck a gun into his ribs and told him to lie on the floor.

Margaret Ostrowski, who was tending bar at the time of the occurrence, testified that the defendant ordered her to lie on the floor also, but she was able to press an alarm buzzer connected to the upstairs apartment. Defendant then ordered her to give him the contents of the cash register, which she did. Responding to the alarm, Miss Ostrowski's parents entered the tavern and Mr. Walter Ostrowski was forced to lie on the floor and Mrs. Leona Ostrowski was forced to sit on a bar stool by defendant. Defendant then attempted to flee through the tavern's front door, but could not open it. Defendant fired a shot into the bar between Leona and Margaret Ostrowski, and then ordered Mrs. Leona Ostrowski to open the door, which she did, and defendant ran out of the door.

Officer Brian Murphy who was responding to the robbery call confronted defendant as he emerged from the tavern and testified that defendant fired at him. The officer returned the fire striking defendant in the arm. The defendant then turned and ran back into the tavern. By this time, Ronald Ostrowski, who had reported the robbery to the police before leaving the upstairs apartment entered the tavern. Defendant, upon seeing Ronald Ostrowski, attempted to shoot him, but Walter Ostrowski was able to hit defendant's arm and deflect the shot. Ronald Ostrowski then shot defendant. Defendant then tried to flee through a window he had broken in the back room of the tavern, but Walter and Ronald Ostrowski ran after him and prevented his escape until the police came around to the back of the building and placed defendant under arrest.

Defendant's testimony was directly contradictory to the testimony of the prosecution witnesses. Defendant testified that he stopped at the Triangle Tavern, whose door was open, to pick up some beer. Defendant related that a man sitting at the bar told him that the tavern had been robbed recently and displaying a pistol stated that he just wished someone would try to rob the tavern while he was there. When the defendant replied, "Well, you probably would hurt them but they would probably hurt you," the patron became angry and attacked defendant. Defendant tried to flee through the front door, but he stated that he was struck repeatedly by several patrons and when he finally reached the door, he saw a policeman who tried to shoot him. Defendant ran back into the tavern where he stated he was shot and that he then lost consciousness. He testified that when he regained consciousness, he was surrounded by policemen and arrested.

Defendant's initial contention on appeal is that defendant's gun was improperly admitted into evidence at trial because it was at variance with an answer given to defendant's discovery motion. In the motion for discovery, the defense asked the State for the "* * * make of gun used

" in the robbery. The State's answer stated the gun used was "* * * a 7.65 cal. B/S Mauser Automatic weapon serial #211362." Statements by certain of the State's witnesses referred to the use of a .32 caliber weapon, and defendant contends that he was prejudiced by the admission into evidence of a weapon that was designated 7.65 cal.

• 1, 2 Compliance with a discovery motion or a Bill of Particulars is necessary to prevent surprise to a defendant. (People v. White, 123 Ill. App.2d 102, 259 N.E.2d 357.) In the instant case, however, the weapon in question was manufactured in Europe and the designation 7.65 is the European metric equivalent in millimeters of the designation .32 in inches used to designate the caliber of American weapons. 7.65 was engraved upon the barrel of the weapon, and thus was the figure given in answer to defendant's discovery motion. Further, a defense attorney personally examined the ...

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