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People v. Kelly

JANUARY 24, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding. MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant was convicted on two counts of armed robbery and sentenced to concurrent terms of 10 to 25 years.

On appeal, he contends (1) prejudicial religious remarks were made during closing argument; (2) improper reference was made during argument to his prior burglary conviction; (3) the proof presented was not consistent with the charges in the indictment; and (4) the sentence is excessive and should be reduced, because of his background and physical condition.

The facts are summarized as follows. On a December afternoon, James Sheridan observed a stranger enter and walk to the back of his grocery store. Another stranger then entered, walked up to a counter, and drew a shotgun from under his coat. When Sheridan saw the shotgun, he took whatever money he had in his pockets and from nearby cash drawers. He gave this money to a clerk for safekeeping, and he and this clerk left the store through a front door. While standing on the sidewalk, he observed the two men, one holding the shotgun, speaking with a store clerk. At trial, Sheridan identified defendant as the man with the shotgun and stated he was wearing a dark hat and coat.

Burtha Young, a clerk, was behind a counter when she noticed Sheridan leave the store with one of the other clerks. She turned to ask another clerk, Debra Costic, why they were leaving and at that time she observed a man, whom she identified at trial as defendant, pointing a shotgun at Debra. He told Debra to give him the money, and Debra gave him the contents of the register. Burtha then opened the register at her counter and handed the money to Debra, who passed it on to defendant. No demand for money from Burtha was made by defendant. All of the occupants of the store, including Debra and Burtha, were then locked in a walk-in meat cooler.

Sheridan, who had remained outside, observed the two men leave the store and enter a yellow Buick with a black top. A woman motorist, apparently hearing Sheridan call for help, trailed the Buick and obtained its license number, which she later gave to Sheridan who in turn gave it to the police with a description of the car and the two men.

Later that evening, Officer Massano investigated a traffic accident involving a black and yellow Buick which had struck two parked cars. He said that the driver of the Buick, later identified as defendant, had an odor of alcohol on his breath and was wearing a dark coat which came down below his waist. He also noted the license number was HK9478.

On the day following the robbery, Officer Bills, who had obtained the same license number of HK9478 from Sheridan, determined the car was owned by James Giles who, when brought to the station and placed in a lineup, was not identified by Sheridan as a participant in the robbery.

Later, Giles brought Officer Bills and another officer to an apartment where defendant was staying and, when Bills observed that defendant fit the description Sheridan had given him of one of the robbers, he placed defendant under arrest. Defendant was brought to the station and placed in a lineup with four other men, and he was identified by Sheridan as one of those involved in the robbery. Bills took a photograph of this lineup and when it was shown to Burtha Young, she also identified defendant as a participant.

Defendant and Reverend Walter Cox testified that on the day of the robbery defendant was painting Reverend Cox's home from early morning until about 4 P.M., when Reverend Cox, who had been at his home the entire day, drove defendant to Giles' place of employment where defendant picked up Giles' car. Defendant also testified that he took the car to pick up some chemicals for Giles. Giles, however, testified he had given defendant permission to use his car on that day to look for a job. He had agreed to leave his car in a lot at his place of employment for defendant to pick up, and when he checked the lot at 12 noon he noticed that his car was gone. Defendant testified further that after he had picked up Giles' car, he did not go for chemicals but instead went to a tavern for about two hours and, after leaving the tavern, while driving Giles' car he collided with two parked cars while trying to avoid a small girl.



Defendant first contends he was denied a fair trial because of prejudicial remarks by the prosecutor during closing arguments. His testimony was that at the time of the robbery, he was painting the home of Reverend Cox. The latter, a Baptist minister and pastor, supported defendant's testimony in this regard. In rebuttal argument, the prosecutor made the following comments:

"If there had been a statute of the Blessed Mary in the courtroom when the Reverend testified, she would have put her hands over her ears because there was nothing spewing forth from the witness chair but unmitigated lies.

I am sorry if the State couldn't bring in a fine, upstanding witness like the Reverend Cox, self-ordained, or ordained by some other Reverend. How unusual that he never finished grammar school — strike that; he never finished high school, but he went on to a university — two colleges, one of divinity that he didn't finish and one of business school; this he ...

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