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People v. Smith

AUGUST 9, 1974.

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

v.

EUGENE "PEPPER" SMITH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. JOHN GITCHOFF, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment entered by the circuit court of Madison County on a jury verdict against the defendant, Eugene "Pepper" Smith, for the offense of murder and the imposition of a sentence of 14 to 42 years in the penitentiary.

On November 12, 1969, an attempted armed robbery of Louis Knowles took place in the Ridge Package Liquor Store in Alton. The attempt resulted in an exchange of gunfire between Louis Knowles and the perpetrator of the attempted armed robbery. In the course of the exchange of gunfire Louis Knowles was mortally wounded. He died 2 1/2 weeks thereafter.

The case against the defendant is based in part upon: (1) the "dying declarations" of the victim, Louis Knowles, made to Magdaline Knowles, wife of the victim; (2) the testimony of Detective John Parker and Captain John Light of the Alton Police Department as relating to "dying declarations" of the victim made at the hospital; (3) the testimony of various physicians as to the extent of the victim's injuries, the cause of death, and the removal of one of the "slugs" from the body of the victim; (4) admissions of the defendant made to Edward Smart while both were inmates in the Madison County Jail prior to defendant's indictment; (5) the testimony of Alma Kinsella who identified the defendant as the person she saw enter the Ridge Package Liquor Store shortly before the offense; (6) the testimony of Susan Komar, the supervising criminalist at the Illinois Bureau of Identification; (7) the introduction into evidence of a chrome-plated .32-caliber pistol found by Russell Brown, one glass jar containing a slug allegedly removed from the victim, a plastic envelope containing three spent slugs from a .32-caliber pistol removed by the police from behind the counter of the Ridge Package Liquor Store immediately after the shooting; and. (8) the testimony of patrolman Fleming who picked up the gun found by Russell Brown and Lieutenant Sandidge who retrieved the slug, allegedly removed from the victim, from the hospital.

The defendant filed: a pre-trial motion to suppress dying declarations; a pre-trial motion to suppress any and all statements, confessions, or admissions of the defendant; and a pre-trial motion to exclude the eye-witness identification of Alma Kinsella. In an order entered March 24, 1971, the motion to suppress the eyewitness identification of Alma Kinsella was denied; the motion to suppress the statement of Edward Smart was granted; the motion to suppress dying decarations was denied with respect to evidence relative to any dying declaration made by the victim on November 29, 1969, to the police officers, John Light and John Parker, and Mrs. Geraldine Hill, and was granted with respect to any dying declarations made to Magdaline Knowles, and was granted with respect to the witness Lula Shake "save for the language of Lula Shake, to wit; `I identified the son of a bitch, Luly.'" The order of March 24, 1971, concluded by stating that:

"It is the further finding of this Court that the deceased was at the time of making statements to the police officers, John Light and John Parker and the other witness, Geraldine Hill, as well as the witness, Lula Shake, beyond a reasonable doubt, of the opinion that he was about to die.

It is hereby ordered, adjudged and decreed that the Court does find as a matter of law and beyond a reasonable doubt relative to those statements of the deceased, Louis Knowles, which have heretofore been admitted into evidence that the same were made while the decedent was "in extremis" and in contemplation of his impending death and finds beyond a reasonable doubt that the same were dying declarations within the meaning of the law."

Subsequently, the court, on March 26, 1971, revoked its March 24, 1971, order, with respect to granting of the motion to suppress the testimony of Magdaline Knowles.

The State appealed the court's ruling with respect to the suppression of the statement made by the defendant to Edward Smart while both were incarcerated in the Madison County Jail. This court held in People v. Smith, 5 Ill. App.3d 642, 283 N.E.2d 736, that "The statements made by the defendant to Smith were not post-indictment statements of the accused to a government agent," and since there is no case which "prohibits the use of volunteered incriminatory statements which are gathered because of the cooperativeness of an informer in whom a prisoner has misplaced his confidence," the statements made to Edward Smart by the defendant were admissible as admissions. Accordingly, this court reversed this portion of the trial court's order and remanded for further proceedings not inconsistent with its opinion. Thereafter a jury trial was held and the aforementioned evidence was presented.

In this appeal the defendant contends: first, that the trial court erred in overruling appellant's objections to "the lack of a proper chain of custody in regard to certain State's exhibits and erred in admitting other evidence despite counsel's failure to object"; secondly, that the trial court erred "in allowing into evidence those purported dying declarations previously excluded by Judge Kinney"; thirdly that the trial court erred "in admitting into evidence, and trial counsel erred in failing to object, to all statements which were admitted into evidence as purported dying declarations" and thereby defendant "was deprived of a fair and impartial trial and due process of law"; fourthly, that the trial court erred in admitting the eye-witness identification of the defendant by Alma Kinsella, that such violated the sixth and fourteenth amendments to the United States Constitution, and that the defendant's being placed in a lineup without counsel deprived him of due process of law; fifthly, that the court erred in overruling defendant's motion for a directed verdict of acquittal at the close of all the evidence; sixthly, that the State failed to sustain their burden of proving the defendant guilty "beyond a reasonable doubt relative to" defendant's "affirmative defense of alibi"; and lastly, that the trial court erred in "excluding or striking" the testimony of defense witnesses Edward Welch and Robert Trone.

• 1, 2 Here defendant contends that certain evidence heard without objection was so prejudicial as to require reversal. It has been frequently stated that failure to object to the admission of evidence operates as a waiver of objections and precludes consideration of the question on appeal. (See, e.g., People v. Scott, 52 Ill.2d 432, 288 N.E.2d 478.) Notwithstanding the fact that no objection was made to inadmissible testimony, appellate courts will consider errors which are so prejudicial as to clearly deny defendant a fair trial (People v. Mays, 48 Ill.2d 164, 269 N.E.2d 281; People v. Hanson, 10 Ill. App.3d 593, 295 N.E.2d 120), or where, by reason of counsel's failure to object, the defendant contends that his appointed counsel was incompetent (People v. Oden, 20 Ill.2d 470, 170 N.E.2d 582). Although the defendant contends that it was "error" for his counsel not to object to the admission of certain evidence, he does not argue that his counsel was incompetent and, therefore, we need only determine whether the evidence was erroneously admitted and, if so, was so prejudicial as to clearly deny defendant a fair trial under the "plain error" doctrine provided in Supreme Court Rule 615. (Ill. Rev. Stat. 1971, ch. 110A, par. 615.) In making this determination, if it appears that the result would not have been different had the errors complained of not occurred, the judgment of conviction will not be set aside. People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1; People v. Anderson, 48 Ill.2d 488, 272 N.E.2d 18; People v. Tribbett, 41 Ill.2d 267, 242 N.E.2d 249; People v. Douglas, 130 Ill. App.2d 938, 267 N.E.2d 43.

• 3 Defendant's first contention is based in part on the trial court's failure to sustain defense counsel's objection to State's Exhibit No. 9, a small glass jar containing a .32-caliber slug allegedly removed from the body of Louis Knowles. The basis for said objection was a lack of a proper chain of custody. Foundation for introduction of an object may be laid either through its identification by a witness or through establishment of a chain of possession (People v. Greer, 28 Ill.2d 107, 190 N.E.2d 742); both, identification and establishment of a chain of possession, are not, however, required as such a requirement would pose an unnecessary burden and would not assure a fairer trial of the accused (People v. Patterson, 2 Ill. App.3d 902, 274 N.E.2d 467, supplemented, 2 Ill. App.3d 902, 276 N.E.2d 354). In the instant case Dr. Edward V. Ferguson testified that after a slug was removed from the body of Louis Knowles, "that it was given to the pathologist at the hospital." After which the following colloquy occurred between Dr. Ferguson and the State's Attorney:

"Q. And who might ...


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