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People v. Houston

JUNE 25, 1974.




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


Indictment No. 72-99 charged McKennie Houston and Leroy Davenport with the offense of intimidation in that they allegedly communicated a threat to Lilly Mitchell to inflict physical harm on her person and on the persons of her children, thereby intending to cause Lilly Mitchell to prevent her son, Arzell Mitchell, from testifying in court against Arthur Lee Dozer, a friend of McKennie Houston and Leroy Davenport. After a trial before a jury, Leroy Davenport and McKennie Houston were found guilty of the crime of intimidation and sentenced to from 2 1/2 to 5 years in the penitentiary. From that conviction and sentence, defendants appeal.

At trial, 18-year-old Arzell Mitchell (also known as Isiah) testified that, on 18 August 1971 at about 4 P.M., he was robbed of $150 and shot once in the back. While in the hospital, he identified two persons as the offenders. One was an individual named Arthur Lee Dozer.

The next witness to testify was Lilly Mitchell. She testified that on 20 August 1971 she was in her sister's seven-room apartment at 4525 S. Federal Street in Chicago, when two male individuals came to the door. When Lilly answered the door, one of the individuals asked whether she was the mother of the boy who got shot. She replied that she was, whereupon they threatened her life and the lives of Isiah and her other children if Isiah should testify against Dozer. Thereafter, the two individuals became verbally abusive. She then slammed the door and called detectives. The two individuals were subsequently identified by Lilly in a lineup as the defendants herein, Leroy Davenport and McKennie Houston.

On cross-examination, defense counsel attempted to impeach Mrs. Mitchell by confronting her with prior allegedly inconsistent statements made by her before the grand jury, at the preliminary hearing, and in the complaints charging appellants.

The final witness to testify was the investigating police officer, Officer Richard Crowley. He testified to having had a conversation with Arzell Mitchell relative to the latter's having been robbed and shot, after which the witness had occasion to arrest Arthur Lee Dozer and Ronald Caldwell. He also testified to having had a conversation with Mrs. Mitchell relative to two youths having approached and threatened her. (Defense counsel objected to the testimony concerning the conversation with Mrs. Mitchell on hearsay grounds and was overruled. Defense counsel also objected to the words "threatening her," which the trial judge then rephrased to "talking to her.") Based on the facts given to him by Lilly, the officer stated that he then arrested Leroy Davenport and McKennie Houston.

On cross-examination of Officer Crowley, defense counsel elicited the fact that his police report charged a Leroy Carpenter and not Leroy Davenport with the commission of certain crimes but not with the commission of the crime of intimidation.

On re-direct examination, the officer testified that his police report, prepared in connection with the case, stated that Leroy Davenport, also known as Leroy Carpenter, had been charged, with unrelated offenses of armed robbery and aggravated battery, and that McKennie Houston had been charged with intimidation and with an unrelated armed robbery. This testimony was objected to by defense counsel as an impermissible reference to other crimes. The objections were overruled. Thereafter, the trial judge refused to permit defense counsel to demonstrate that the unrelated charges had been dismissed upon preliminary hearing thereof.


The first issue we decide is the constitutionality of the intimidation statute. The issue was raised by defendants' motion to quash the indictment, which motion was denied. Defendants-appellants (hereafter appellants) contend that the punishment provision of the statute violates the equal protection and due process clauses of the constitution. The statute creating the offense of intimidation has made the offense an indictable misdemeanor. An indictable misdemeanor is a relatively new type of offense, created over the last decade or two in connection with new types of criminal conduct, as to which conduct the legislature appears to wish to give the State and/or the trial judge a broad discretion in respect of penalty, ranging from the felony penalties of imprisonment in the State penitentiary for more than 1 year and/or a fine, to the misdemeanor penalties of imprisonment in a correctional institution other than the penitentiary for not more than 1 year and/or a lesser fine. The gist of appellants' position is that, where there are no standards governing or guiding the exercise of the prosecutorial (or judicial) penalty discretion created by the statute, the statutory scheme permits and encourages an arbitrary and discriminatory enforcement of the law. The Illinois authority cited for this proposition is People v. McCollough (1972), 8 Ill. App.3d 963, 291 N.E.2d 505.

• 1 It suffices to say that the McCollough decision has just been reversed by our supreme court (57 Ill.2d 440) in an opinion sustaining the constitutionality of a criminal statute under which the degree of prosecutorial and judicial discretion was even greater than the degree of discretion involved in an indictable misdemeanor. Hence, there is no merit to appellants' contention that the statute creating the offense of intimidation is unconstitutional.

The next issue we decide is whether the testimony of Lilly Mitchell, who was the sole occurrence witness for the State, was legally sufficient to support appellants' convictions beyond a reasonable doubt. Appellants contend that prior statements of the witness in the complaints charging appellants, in her testimony before the grand jury, and in her testimony at the preliminary hearing were so inconsistent with her trial testimony as to render her trial testimony legally insufficient to support a conviction.

• 2 Prior inconsistent statements of a witness bear on the credibility of the witness' trial testimony and go to the weight to be given to that trial testimony. This is a question for the jury. (People v. DeSavieu (1973), 14 Ill. App.3d 912, 303 N.E.2d 782.) From our examination of the record, we cannot say that the testimony of the complaining witness was so unsatisfactory as to leave a reasonable doubt of the guilt of the appellants as a matter of law. Therefore, we will not disturb the jury's verdict.

Appellants next contend that the trial court committed reversible error in admitting evidence of unrelated offenses allegedly committed by appellants and, thereafter, in refusing to permit defense counsel to elicit the fact that those unrelated charges had been later dismissed. However, by first eliciting the fact that the police report charged Leroy Carpenter and not Leroy Davenport with the commission of the instant offenses, as well as of the unrelated offenses, defense counsel created an issue as to the ...

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