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People v. Kelly

SEPTEMBER 30, 1974.

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

v.

JAMES EDWARD KELLY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. WILLIAM R. NASH, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The defendant was jointly indicted with one Claude Jackson, a/k/a Mickey Charles Mc Connell, for armed robbery and kidnapping. The defendant was tried separately before a jury, was found guilty of both offenses and was sentenced to 5-15 years for the armed robbery and 3-5 years for the kidnapping.

Two issues are raised by the defendant. The first contention is that reversible error was committed when the prosecutor attempted to, or did, impeach a defense witness. The second contention is that the sentence is excessive.

On the night of April 15, 1971, two Negroes entered the Albert Pick Motel in Rockford, Illinois. They inquired about a room and then at gunpoint they obtained money from two women in the office of the motel. The women were unable to open the safe, and one woman was then bound and placed on the floor. Then one of the defendants took the other woman upstairs in the motel at gunpoint and forced the hotel proprietor and his wife to come down to the office and open the safe. Finally, the men taped up all four of the people, robbed them, and left.

The two men were in a rented car and apparently drove to the Union Hall Department store parking lot in Rockford, Illinois. Paula Bird was getting into her car when two men came up to it and she locked the doors. One of the men pounded on the window with a gun and she immediately started honking her horn. The men then left her car and accosted one John Hooley who was approaching the rear of the Union Hall. As Mr. Hooley came into the parking lot the men came up to his car, opened the door, and under gun point forced Mr. Hooley to drive them to Madison, Wisconsin. This trip took approximately 2 hours. There, Hooley was put out of his car and the car was subsequently recovered by the Madison police department.

The defendant was arrested in Gary, Indiana, and was brought to Rockford where he was identified "in a police line-up" by all four of the people who had been robbed in the motel. He was also identified by John Hooley.

The defendant presented an alibi defense in which he contended that on the night of the robbery and the kidnaping he had attended a party in Gary, Indiana. Five of his friends, as well as the defendant, testified to this effect. Anthony Reed, called by the defense on direct examination, testified that the defendant was at the party in question on the night of April 15. On cross examination the State attempted to impeach Reed's testimony and queried him as to a purported statement that he had made to the police wherein Reed told the Rockford police that the defendant had "admitted that he robbed the Albert Pick Motel with a guy by the name of Mickey." Reed denied that he had ever related the defendant's conversation to the police. The court, out of the presence of the jury, stated that the evidence adduced in this regard was for the impeachment of Mr. Reed only. The court further stated that the statement was not substantive proof of the offense charged and could only be used for the purpose of "impeaching or the testing of the credibility of the witness Reed."

A police officer was called who testified that he had previously heard defense witness Reed make a statement that the defendant had been "involved in a stick-up here in Rockford" with a man by the name of Mickey. The police officer further testified that Reed gave them a description of the defendant and the area in Gary where the defendant lived.

The court instructed the jury in this regard (People's Instruction #1):

"Any evidence which was received for a limited purpose should not be considered by you for any other purpose."

and (People's Instruction #9):

"Evidence that on some former occasion a witness made a statement inconsistent with his testimony in this case may be considered by you only in deciding the weight to be given to the testimony of that witness."

In closing argument the prosecutor in referring to Reed's testimony stated:

"I don't present this evidence of what the defendant said to Anthony Reed as direct proof of the defendant's guilt here, and I don't want you to consider it that way. I do present it, however, concerning the credibility of Mr. Reed when he says one thing in court and he says another thing when he ...


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