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People v. Lipscomb

APRIL 11, 1974.

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

v.

WILBERT LIPSCOMB, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK J. WILSON, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Tried by a jury, defendant was found guilty of the murder and armed robbery of Jerome Wells and the attempt murder of Richard White. Defendant was sentenced to terms of 100 to 150 years for murder, 10 to 20 years for armed robbery and 10 to 20 years for attempt murder, the sentences to be served concurrently.

On appeal defendant contends that (1) the evidence was not sufficient to prove him guilty beyond a reasonable doubt; (2) he was denied his right to confront witnesses against him due to the trial court's restriction of the cross-examination of the State's principal witness; (3) the trial court erred in permitting a ballistics expert to testify regarding tests run on a revolver which had been destroyed prior to trial; (4) the trial court erred in permitting defendant's sister to be called as the court's witness and that this error was compounded by the admission of hearsay evidence under the guise of impeachment; (5) a photograph of the deceased's body should not have been admitted into evidence; (6) the State's closing argument was improper; (7) since his convictions for the armed robbery and murder of Jerome Wells resulted from the same conduct, the conviction and sentence for armed robbery must be reversed; and (8) the sentence of 100 to 150 years for murder is excessive.

Richard White testified for the State that on the afternoon of August 10 he was working in the K & W Hardware Store. At approximately 3 P.M. a man wearing a yellow banlon shirt entered the store accompanied by a second shorter individual. The man wearing the yellow shirt asked Jerome Wells, the owner of the store, for an article not carried by the store. The two men "took a look around" and walked out. The two men subsequently reentered the store. They again looked around and walked out. White was able to observe them for about 2 minutes. Shortly thereafter, these men entered the store a third time. There was now a third individual outside the store peering in through a window. White walked to the front of the store, locked the door and then walked over to a merchandise counter. The man wearing the yellow shirt was standing in an aisle next to Wells. White walked toward them, past the shorter man. As he came upon the individual standing beside Wells, the man "turned around instantly and shot [him]." The man was holding two guns, one with a long (4 to 6 inches) silver barrel, the other a darker snub-nosed model. White was 2 or 3 feet from the man when he was shot. Although the man was wearing blue-tinted sunglasses when he entered the store the third time, he was not wearing them when he shot White. Upon being shot, White fell to the floor. The shorter man stood over him and ordered him not to move. While on the floor he heard one shot followed by several others. He heard a thud next to him and then the sound of the cash register ringing, indicating that the cash drawer had been opened. This was followed by the sound of trampling feet and then the sound of the front door closing.

After the intruders had fled, he got up and touched Wells. He then called the police. He struggled to the street in an attempt to get help, collapsed and was taken to the hospital. There, during the days following the incident, the police showed him photographs from which he identified defendant as the man who shot him. On a separate occasion he identified a photo of defendant's brother, Carl Lipscomb, as being the shorter man who participated in the robbery. Prior to the robbery there had been about $60 in cash and a check, dated August 10, 1970, made out to K & W Hardware in the cash register.

White was a student at Elmhurst College. He had worked "off and on" for 1 year in the State's Attorney's office. On cross-examination White testified that he worked in the investigative section of the State's Attorney's special prosecutions unit. At the time of trial, however, he was no longer employed by the State's Attorney.

The testimony of the State's expert witnesses indicates that White's wound was caused by a .38-caliber weapon and that Wells' wounds were caused by both a .38-caliber weapon and a .22-caliber weapon.

Willie Jones, Sr., testified for the State that on August 10, 1970, at approximately 3 P.M. he was working at the rear of an automobile supplies store located at 201 North Cicero Avenue. He saw three young men running toward him from the south. He identified one of the men as Carl Lipscomb, his next-door neighbor. Although he didn't know their names, he had seen the other two youths in the neighborhood. He described the taller of them as wearing a yellow shirt. He did not believe this man to be defendant; however, he didn't "know what his face looked like now because [he] didn't pay any attention to it."

Willie Jones, Jr., 13 years of age, was qualified as a witness for the State: At approximately 3 o'clock on August 10, 1970, he was in his home located at 206 North LaCrosse with his brother and sister. They were watching television. He looked out the window and saw his next-door neighbors, defendant and Carl Lipscomb, running to their home. Defendant was wearing an orange nylon shirt.

Robert Shanahan, a homicide investigator for the Chicago Police Department, testified for the State that at approximately 3:30 P.M. on the date in question, he received an assignment to go to the K & W Hardware Store. Upon arriving at the store he observed the body of the deceased. About 20 minutes later, during the course of his investigation, he spoke with Willie Jones, Sr., at the auto supply shop. Acting on information given him by Jones, he proceeded to the Lipscomb apartment at 204 North LaCrosse. He was accompanied by three other police officers. Through a back-porch window he was able to see a check lying on a table. One of the officers climbed through a window and unlocked the porch door for Shanahan. Upon gaining entry to the apartment he found a .22-caliber revolver, a .38-caliber revolver with a blue steel barrel, four spent .38-caliber shell casings and the check which was dated August 10, 1970, and made payable to "K & W Hardware."

Detective Robert Smitka testified for the State that on August 11, 1970, he interviewed Richard White in the Garfield Park Community Hospital. During the course of the interview he showed White a group of six photographs. White picked out a photo of defendant as the man who shot him. White was heavily sedated when he was asked to make this identification.

Patrolman Arthell Goodwin testified for the State that at approximately 12:45 A.M. on September 8, 1970, he observed a group of seven or eight young people standing on the street. He approached the group to ascertain whether they were in violation of the curfew then in effect. Two of the youths began to walk away. When Goodwin ordered them to stop, he noticed a bulge shaped like the handle of a revolver under the T-shirt of one of them. Upon searching him, he discovered a .22-caliber revolver with a 6-inch chrome finished barrel. The youth was placed under arrest. Goodwin identified him as defendant.

The State called Laura Lipscomb, defendant's sister, to testify. When she denied any remembrance of having seen defendant on the evening of August 10, 1970, she was declared a hostile witness. On cross-examination by the State she testified that she remembered being interviewed by Investigators Rinaldi and Corbett but could not remember telling them that she had seen defendant following the crimes at which time defendant told her that he had been wounded. Rinaldi and Corbett were then called. They testified that Ms. Lipscomb had told them that her brother had been shot in the hand.

Claude Bridges, a record clerk at the Cook County Jail, testified for the State that the medical intake sheet of defendant, dated September 8, 1970, indicates that ...


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