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People v. Mitchell

OPINION FILED DECEMBER 23, 1975.

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

v.

STEVEN MITCHELL, DEFENDANT-APPELLANT.



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

MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:

This was a prosecution in which a jury convicted Steven Mitchell of armed robbery. The trial court, after overruling post-trial motions and hearing evidence in aggravation and mitigation, sentenced him to a term of 20 to 60 years to be served consecutively with one of four to four years and a day he had received for a previous armed robbery conviction. He appeals to this court.

In his opening brief, defendant presented six issues, none that discussed the legal sufficiency of the evidence. Consequently, we ordered the parties to file supplemental briefs advising us of their views on this subject. This was done. Therefore, seven issues are before us for review.

1. Whether the evidence on which the jury returned its verdict proved defendant guilty of armed robbery beyond a reasonable doubt.

2. Whether the trial court erred in denying defendant's motion to suppress evidence which the state obtained as a result of his arrest without a warrant in his home.

3. Whether it was plain error for the prosecution to present testimonial evidence which showed the jury that when he was advised of his constitutional rights at the time of his arrest, defendant refused to answer questions asked of him by policemen.

4. Whether the trial court erred when, in permitting the State to impeach a written statement he gave the police, it admitted testimonial evidence that told the jury of defendant's prosecution for another offense.

5. Whether the trial court erred when it admitted into evidence several cards that were found in defendant's wallet at the time of his arrest.

6. Whether the opening portion of the prosecution's closing argument to the jury was prejudicial.

7. Whether the trial court imposed an excessive sentence when it ordered defendant to serve a consecutive sentence of 20 to 60 years.

I.

On Thursday morning, March 23, 1972, Joseph Eisenberg left home and went to his fur shop on the first floor of his three-story building at 8110 South Cottage Grove in the city of Chicago. In the rear of the building, Eisenberg had a detached garage in which he kept his 1969 Pontiac. Defendant Steven Mitchell and his family were Eisenberg's tenants and lived in an apartment on the second floor. At about 5 p.m. that afternoon, Eisenberg's wife, Frances, called him from the Marshall Field store in Chicago and asked him to meet her there at 6 o'clock so they could drive home. He agreed to do so. Eisenberg, however, did not keep the appointment; nor did he get home that evening.

The next morning, sometime between 8:30 and 9 a.m., Frances Eisenberg and her son-in-law, Paul Chervin, a Chicago lawyer, went to the fur shop looking for Eisenberg. The front door was locked. They went to the rear and looked into the garage through a window and saw that Eisenberg's automobile was not there. Chervin opened the garage door and thereupon, both of them saw Eisenberg's body on the floor, face down, under some boards. They called the police; and later examination disclosed he had been killed by a bullet wound in the back of the head. His face and forehead had marks which a pathologist said could have been caused by heavy blows with the butt of a gun.

At about 11 a.m., the same morning, John Muscarella was alone in his car approaching the intersection of Racine and Webster in the city of Chicago. As he proceeded, another car, heading west on Webster, ran into him. The driver was Steven Mitchell; and it was Eisenberg's 1969 Pontiac. In identifying himself to Muscarella, defendant said his name was "E. Mitchell" and that he lived at 4756 South Washtenaw, a statement that was untrue. Muscarella, in turn, gave defendant his name which defendant wrote on a card. They parted.

At about 1 p.m., the same afternoon, Chicago policeman Henry Crump and two fellow officers were assigned to investigate the death of Joseph Eisenberg. They saw defendant at 8110 South Cottage Grove and asked him if he knew anything concerning the circumstances of his landlord's death. Defendant said he knew nothing except earlier in the day his having overheard his brother and his sister tell their mother "* * * that something was funny in [Eisenberg's garage] the previous evening." Crump talked with the two children; and as a result, the following day, he and his fellow officers took defendant, his brother and sister, to a police station where they were questioned. The younger children were shown photographs from a police mug book, and they gave the officers written statements. Thereafter, the three were released. No further inquiry was made of them by the police concerning Eisenberg's death. The next day, March 26, 1972, a Chicago policeman found Eisenberg's automobile parked one block away from his fur shop. When it was examined by crime laboratory technicians, it was discovered that the rear view mirror had a fingerprint that was identifiable and suitable for comparison.

On July 6, 1972, at about 3:30 a.m., Chicago policemen Michael O'Connor and Irving Kaplan went to apartment 303 at 5135 South Federal and knocked on the door. When defendant opened it, Officer O'Connor arrested him. He was searched; and on his person was found a wallet that contained six credit cards, an Illinois driver's license, a social security card and a blank check that belonged to Joseph Eisenberg. The card bearing Muscarella's name was among the items in the wallet. When O'Connor asked defendant what he was doing with credit cards and items of identification that obviously did not belong to him, he said that the owner of them was dead "* * * and he just had them." Defendant was taken to a police station. There another police officer made a victim check and learned that Eisenberg had been murdered. As a result, defendant was transferred to the central headquarters of the Chicago police department for questioning. In the course of that, another policeman asked defendant how he happened to have Eisenberg's personal belongings in his possession. He explained that he found the items in an alley behind his home a month before. Defendant was asked by the same officer if he had ever been in Eisenberg's 1969 Pontiac. He said he had not. He was asked a second time by another police officer if he had ever been in Eisenberg's vehicle. Again, he said he had not. Defendant's fingerprints were taken and when they were compared with the fingerprint that had been found on the rear view mirror of ...


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