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People v. Hubbard

OPINION FILED OCTOBER 1, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

IVORY HUBBARD, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES J. MEJDA, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

The defendant, Ivory Hubbard, was tried and found guilty by a jury in the circuit court of Cook County of the offenses of murder and armed robbery of Stephen E. Granzyk. The defendant's trial was severed from that of his co-defendants, Andrew Brooks and Celester Jones, who were tried and convicted of the same offenses earlier. We affirmed their convictions in People v. Brooks (1972), 51 Ill.2d 156, and the facts concerning those offenses were adequately stated in that opinion and we do not deem it necessary to repeat them here, except insofar as necessary to depict the issues raised by this defendant.

In his appeal, the defendant Hubbard contends: (1) that the proof was insufficient to support a finding that he was guilty as a principal in the murder of which he was accused; (2) that the trial judge committed error by restricting the cross-examination of the principal State's witness; (3) that the defendant was denied a fair trial as a consequence of the trial judge's comments before the jury; and (4) that the defendant's constitutional rights were violated when his oral and written statements were admitted in evidence.

Between 8 and 9 P.M., on November 20, 1967, five boys, Jones, Brooks, the defendant Hubbard, Williams, and Hart, were in the apartment of Jacqueline Thomas, and Hubbard produced and showed the other boys a .22-caliber rifle which had the barrel sawed off. As the group left the apartment with the rifle they saw Stephen E. Granzyk, an insurance-premium collector, in the hall. Later Jones shot Granzyk, and Jones and Brooks took $35 from his pocket and his watch, and all five boys fled to Hart's apartment. There the money was divided. However, Hubbard gave his share back. Hart put the rifle in a drawer in his sister's room.

In raising the question of whether he was proved guilty as a principal in the murder of Stephen E. Granzyk, the defendant argues that he was not accountable for the conduct of Brooks and Jones, whose conviction of the murder of which the defendant is accused was affirmed in People v. Brooks (1972), 51 Ill.2d 156, and he further contends that even if the evidence was sufficient to create an inference that he joined in an unlawful purpose or design with Brooks and Jones, that he nevertheless withdrew from that unlawful purpose, and communicated his intention to withdraw to his co-conspirators. The defendant's argument assumes some apparent force because he was not present at the precise scene of the murder.

The proof introduced during the defendant's trial demonstrates that the five young men were acquaintances, and that the defendant considered Kenneth Hart to be a good friend; that on the evening the offense was committed, they all met in a poolroom located at Madison and Western streets in Chicago; that they left the poolroom together at approximately 7 P.M. that evening and went to the fifth-floor apartment of Jacqueline Thomas, a friend of the defendant Hubbard, located on West Jackson Street in a building in which the defendant lived, being a part of a project area called Rockwell Gardens. In an offer of proof, rejected by the trial court, Hart testified that the group had committed several armed robberies, one of which was committed several days prior to November 20. However, he did say that the defendant had been passive although present, out of fear of going back to jail. He functioned somewhat as a lookout and at times shared in the proceeds of the robberies.

Hart testified that all five left the Thomas apartment and stood out front when he saw Granzyk, and he said, "When I seen him I started looking at everybody else and everybody started looking at me." Billy Williams testified that he said the man in the hall was an insurance man.

While in Jacqueline Thomas's fifth-floor apartment, the defendant had produced a .22-caliber rifle with a sawed-off barrel for examination by the boys, and he told them it was loaded. He testified that he wanted to return it to its owner, whom he asserted to be Charles Howard. In explanation of his possession of the rifle, the defendant said that Howard had asked him, the day before, to keep the loaded rifle; that Howard had brought the rifle to the defendant's apartment concealed under his (Howard's) coat; that when they met the following day, Howard asked for the return of the rifle and the defendant agreed that he would carry it to the poolroom for exchange, at some unspecified time that evening. The defendant also explained that he had moved the rifle to Jacqueline Thomas's apartment the evening he received it.

While the young men were examining the rifle and passing it around, Jacqueline Thomas's boyfriend arrived and asked that they all leave, which they did. Prior to their leaving, the defendant said that there had been no talk of robbery, or of the presence of the victim in the building.

According to the testimony of Williams, as all five left the apartment, a man, who was carrying a book and who was obviously an insurance-premium collector, was observed standing in the hallway, about to descend a middle stairway. Suddenly, according to the defendant, Jones grabbed the rifle from the defendant's hands and ran away with it. Jones and Brooks pursued the insurance man down the middle stairway while the defendant and Hart went down another stairway and Williams went up another stairway. Thus, the group fanned out around Granzyk. All but Williams met in a stairway about 25 feet from where Granzyk was standing in a hallway waiting for an elevator.

The defendant asserts that he did not know what was going on, yet he did not inquire of Jones where he was going with the rifle or why.

It was within the province of the jury to consider all facts and circumstances of the case in determining whether the group, and each individual thereof, was participating in a common purpose to rob Granzyk. This was an issue of fact for the determination of the jury and its determination will be set aside by this court only where the evidence is so unsatisfactory as to leave a reasonable doubt as to defendant's guilt. (People v. Glover (1971), 49 Ill.2d 78, 84.) In Glover, at page 84, this court stated: "It is axiomatic that it is the function of the trier of facts to determine the credibility of the witnesses, and its finding of guilty will be disturbed only when the evidence is so unsatisfactory as to leave a reasonable doubt as to defendant's guilt." Such is not the case here.

The defendant testified that when he and his companion arrived at the scene where they met Jones and Brooks, Jones had opened the door to the stairway and was pointing the rifle at the victim; that the defendant "snatched" Jones from the doorway and that a struggle then ensued over the gun during which they all began laughing, and that the defendant and Hart then left, with Jones still holding the weapon. They returned to the fifth floor and were talking to Jacqueline Thomas and her boy friend when they heard the shot. They immediately returned to the scene where they found Jones and Brooks standing over the body of the insurance man. In People v. Armstrong (1968), 41 Ill.2d 390. at 398-399, this court stated:

"The next contention of defendants involves a request to depart from the long established common-design rule, i.e., that where defendants have a common design to do an unlawful act, then whatever act any one of them does in furtherance of the common design is the act of all and all are equally guilty of whatever crime is committed. (People v. Tarver, 381 Ill. 411.) Presumably this argument is made on behalf of Armstrong, as it is Sumlin who fired the fatal shots, whereas Armstrong, using the shotgun, only mangled the decedent's arm. Such an argument is strange indeed, and, of course, wholly unimpressive. If anything, the facts of this case only serve to further buttress the established rule that on such a foray as these defendants embarked, all are equally liable for the ...


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