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People v. Morrow

OPINION FILED AUGUST 2, 1976.

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

v.

KENNETH MORROW, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Defendant, Kenneth Morrow (referred to in this opinion as Kenneth), was indicted along with Leslie Morrow, his brother (referred to in this opinion as Leslie), Michael Crump, Stephen Meredith and Charles Bailey, for the offense of armed robbery in violation of section 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, § 18-2). After a joint jury trial, Kenneth and his co-defendants Crump, Meredith and Bailey were found guilty. Leslie was also found guilty after a jointly conducted bench trial. Kenneth was sentenced to a term of 4 to 8 years, and he appeals.

Alfred King and his common-law spouse, Patricia Bell, returned to their apartment at 1741 West 80th Street in Chicago at approximately 12:30 a.m. on September 11, 1973. A short time later, Crump, an acquaintance of King, arrived at the apartment. Crump testified that while there he snorted heroin with King. King's testimony was that around 6 or 7 p.m. the previous evening he had snorted heroin, but did not use any narcotic between that time and the robbery which occurred following Crump's arrival.

After Crump had been in his apartment a short while, King escorted him to the front door and opened it. As they stepped into the hallway, two men jumped off the stairway and pointed a revolver and a shotgun at them. At trial, King identified the men as co-defendants Meredith and Bailey. The assailants put a pillowcase over King's head, pushed him back into the apartment and knocked him to the floor. Crump testified something was also put over his head, and he was forced to lie down on the floor.

Bell testified that she was in the kitchen when the men entered the apartment. One of the assailants accosted her with a gun, pulled the turban she had been wearing over her face, and ordered her to go into the dining room, take off her clothes and lie on the floor. She complied with these commands. Two rings were taken from her hands. She stated she was in a position to see the two men enter the apartment, but was unable to identify either of them, and that Crump was the only defendant she saw in her apartment.

During the course of the robbery, while he was on the floor with his eyes covered by a pillowcase, King was questioned about the location of various items in the apartment. King's testimony was that he recognized the voice of the person who questioned him as that of Leslie because Leslie stutters. He had known Leslie for 14 or 15 years and in the previous 10 years saw him approximately weekly.

King also testified that after Leslie questioned him about the location of various articles and while the robbery was progressing he heard Leslie call out, "Come here Kenneth," and a voice, which he recognized as that of Kenneth, responded, "Shuh, be quiet." He had known Kenneth as long as he knew Leslie and saw him frequently. King conceded that at the preliminary hearing, held the day after the robbery, he testified he had not heard Kenneth's voice.

The robbers ransacked King's apartment, taking several valuable items including rings, wristwatches, cameras, a jar containing coins, a fur jacket, three guns, a clock a camera case and a tape recorder.

Crump testified that after about 20 minutes the two men who originally entered the apartment put tape on his eyes, took him outside, put him in an automobile and drove away with him. One of the assailants was in the front seat and the other was in the back seat with Crump, sitting to Crump's left. When the automobile stopped he opened the right rear door, ripped the tape off his eyes and jumped out. The automobile with the two men in it then took off. Crump found himself on South Loomis and he ran north on Loomis for about a block which brought him to 90th or 89th. He continued running west on 90th or 89th for two blocks and then turned north, still running, for about a half a block. Crump then walked to the apartment of Helen Morrow, the sister of Kenneth and Leslie, which was on 80th Street near Ashland. Crump testified he ran half of the way from 91st and Loomis to Helen Morrow's apartment and it took him 1 hour to 1 1/2 hours to reach there. Entering the apartment through the front door, he walked through the living room and dining room and into a bedroom where he found Kenneth and Leslie. Then in about a minute the police came in. Just before the police arrived, Crump saw the co-defendants Bailey and Meredity with their clothes on sitting on the couch in the apartment.

Chicago Police Officer Joseph Gorman testified that in response to a radio call he and his partner went to King's apartment where he had a conversation with King. They then proceeded to an apartment building at 1548 West 85th Street, a few blocks from King's apartment, where Helen Morrow lived, and where they were joined by Chicago Police Officer John Molloy and his partner. Officer Gorman noticed a light in the third-floor apartment; they entered the vestibule of the apartment building and rang the doorbell with the name Morrow on it, but received no answer. They went to the rear of the building and saw the light in the third floor apartment go off. They walked up to the third floor and knocked on the door. Officer Gorman pointed his flashlight into the apartment and saw two cameras, a camera case and a jar containing coins on the kitchen table. He knocked on the door some more, and after about 10 minutes Helen Morrow came to the rear door and admitted the police officers. Officer Gorman found co-defendants Meredith and Bailey lying on a bed fully clothed trying to kick their shoes off. Officer Molloy entered a bedroom and found Kenneth, Leslie and Crump clothed and with their shoes on. Two of them were lying in beds and the third was lying on the floor.

The officers discovered the items taken from King in Helen Morrow's apartment as well as other firearms. King identified the items which had been taken from his apartment.

The issues raised by this appeal are: was defendant's motion for a severance properly denied; was the victim's testimony attributing a statement to defendant's brother, Leslie, while the victim was blindfolded inadmissible and prejudicial hearsay as to Kenneth; was defendant's guilt established beyond a reasonable doubt; was it error to receive in evidence weapons recovered in the apartment where the defendants were arrested which were not taken from the victim or connected by any evidence to the robbery; was the response of the deputy sheriff in charge of the jurors to a request from the jury for a transcript of a witness' testimony reversible error?

• 1 Where several persons are jointly indicted the general rule is that they should be tried together. The decision as to whether separate trials should be granted is a matter for the trial court's discretion and should not be reversed in the absence of an abuse of discretion. (People v. Canaday (1971), 49 Ill.2d 416, 425, 275 N.E.2d 356. See also People v. Brown (1975), 27 Ill. App.3d 569, 574-76, 327 N.E.2d 51, and cases therein cited.) The resolution of a motion for severance turns on whether the defenses are of such an antagonistic nature that defendants cannot receive a fair trial when tried together. People v. Gendron (1968), 41 Ill.2d 351, 356, 243 N.E.2d 208.

The defenses offered by the respective defendants were entirely compatible. The only co-defendant who testified was Crump and he did not implicate Kenneth or any other defendant. All of the defendants pleaded not guilty, and their defense was that they did not participate in the ...


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