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People v. Smith

MARCH 26, 1974.




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


Defendant, Dennis Smith, was charged with attempt armed robbery *fn1 and aggravated battery. *fn2 After a jury trial he was found guilty of both offenses and was sentenced to concurrent terms of 4 to 11 years in the penitentiary. Defendant appeals and urges reversal of his convictions on the grounds that:

1. The victim's in-court identification of defendant was tainted by suggestive show-up and lineup procedures and defendant's motion to suppress the in-court identification was erroneously denied;

2. Impermissible hearsay testimony regarding the victim's out-of-court identification of defendant was allowed into evidence;

3. Defendant's right to cross-examine his accuser was unduly restricted;

4. Evidence of a gun and cartridges was erroneously introduced into evidence when no connection between the evidence and the offenses was shown; and

5. The evidence was insufficient to prove defendant guilty beyond a reasonable doubt.

On March 25, 1971, at approximately 6 P.M., Bertha Adams was walking east on 61st Street in Chicago. She noticed three boys walking behind her, and as she turned to enter a courtyard of a building at 705 East 61st Street, the three boys passed her. She observed the shortest of the three follow her into the courtyard, and heard a voice behind her say "Give me your purse or I will shoot you." Mrs. Adams turned to her left and looked directly at the offender. He repeated his statement and Mrs. Adams then screamed and began to run. The offender shot her in the hip and she fell. Neighbors called police who arrived on the scene and transported the victim to Billings Hospital.

At trial Mrs. Adams identified defendant as the man who approached her, asked for her purse and shot her. She also testified that she identified defendant by his face and his voice when he was brought into her hospital room. On cross-examination she testified that she had never seen defendant prior to the incident, and that she could not describe the other two boys at the scene. She stated that she did not know how long she observed the offender's face, and denied stating in previous testimony that she observed the offender for no more than 10 seconds. She also recalled that she described the offender to police as a Negro wearing a black leather jacket. She did not tell police that the jacket was waist-length or that the offender was a Negro with a dark complexion. She did not describe his face or hair style, and she did not see the gun held by him. In the hospital the officers told her that they had a man for her to look at, and then they brought in defendant. She recognized defendant's face.

Detective Lawrence Copeland testified that he arrived at Billings Hospital to investigate the crimes at approximately 7 or 8 P.M. on March 25, 1971. The victim was lying on a bed and a lineup was conducted in the hospital emergency room. Two Negro policemen were placed in the lineup with defendant, and the victim identified defendant. Two or three days after the incident, Detective Copeland returned to the hospital to retrieve the bullet removed from Mrs. Adams' body, but he was informed by hospital personnel that the bullet had been lost.

Detective Robert Krueger, Officer Copeland's partner, testified regarding the lineup at the hospital. His testimony was substantially identical to Copeland's. He added that the gun dropped by defendant prior to his arrest was shown to Mrs. Adams who could not identify it as the gun wielded by her attacker.

Officer Richard Hutchings, who responded to the call regarding the shooting and who also arrested defendant, testified that the victim described the offender as a "male Negro, dark-skinned, approximately 18, wearing a black, waist-length leather jacket." He and his partner began a search of the area, and after patrolling for approximately 1/2 hour, he observed defendant in an alley. He observed defendant step behind a post or telephone pole and drop a white object. The officer left his car and defendant moved toward 63rd Street. The officer proceeded to the post and found a small, .22-caliber revolver with one expended cartridge. He chased defendant who had begun to run, and he apprehended defendant in another alley. The officer told defendant that he fit the description of a man involved in an attempt armed robbery and aggravated battery, and defendant denied any involvement in the crimes. The officer proceeded to Billings Hospital with defendant and inquired as to the victim's condition. He then brought defendant into the victim's room whereupon the victim stated, "That is the man." On cross-examination Officer Hutchings stated that he had stopped two or three persons fitting the offender's description prior to his observation of defendant. He also recalled that defendant denied dropping a gun, and that he stated that he had been with friends between 5 P.M. and 7 P.M. that evening.

After introducing into evidence the gun, one expended cartridge and three unexpended cartridges, the State rested.

Defendant testified in his behalf that he was with friends at 884 East 64th Street from 5:30 P.M. to approximately 7:40 P.M. on the evening in question. He stated that he did not drop a gun in the alley, and that he was not running away from police when he was arrested. At the time of his arrest, at approximately 7:40 P.M., the officers did not mention the gun. He was taken to the hospital and brought into a room where Officer Hutchings asked Mrs. Adams if he was the person who had shot her. She did not speak, but shook her head. He was taken from the room and two detectives entered the room with the victim. They later exited and placed defendant in a lineup with two policemen. They were all told to say "Give me your purse or I will shoot you." The victim then identified defendant.

Tyrone Smith and Flossie Smith were called as alibi witnesses. They both testified that defendant arrived at their apartment between 3 P.M. and 4 P.M. and remained until after 8 P.M. on March 25, 1971.

In rebuttal the State recalled Officers Hutchings and Krueger. Officer Hutchings testified that he arrested defendant between 7:30 and 7:45 P.M. Officer Krueger testified that he first observed ...

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