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People v. Spence

OPINION FILED NOVEMBER 17, 1976.

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

v.

COUNT DUBORIS SPENCE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding.

MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Count Spence was indicted for murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1), and, after a jury trial, he was sentenced from 19 to 49 years of imprisonment. He appeals from his conviction and raises the following issues for review: (1) whether a warrantless arrest at home, several hours after the accused has been identified as the assailant, violates the fourth amendment to the United States Constitution; (2) whether a lineup is unnecessarily suggestive when the accused has characteristics that are different from those of the other participants; (3) whether the cumulative effect of the following acts by the prosecutor denied the defendant his constitutional right to a fair trial:

(a) the prosecutor's presentation of evidence that two non-testifying witnesses had implicated the defendant, and the reliance on this evidence in his closing argument;

(b) the prosecutor's final argument was prejudicial;

(c) the prosecutor commented on the invocation by the defendant of his fifth amendment right to remain silent and his sixth amendment right to counsel;

(d) the prosecutor introduced evidence that was the fruit of an illegal arrest;

(e) the court improperly refused to permit the jury to read a letter used by the prosecution to impeach the defendant's mother;

and (4) whether defendant's minimum sentence was excessive.

The State presented the following evidence at the trial. Dale Miller testified that on June 13, 1973, he and John Bruegger were traveling in a pickup with a camper attachment, along with two other men, when they stopped at Cermak and Federal in the city of Chicago. Miller testified that Bruegger was riding in the passenger seat reading a map when he heard a sound "like a firecracker going off." Miller looked at Bruegger and discovered that he had slumped in his seat and blood was running down his forehead. The witness jumped out of the truck and ran to the rear of the vehicle so he could let the passengers out of the camper and, when he reached the rear door of the vehicle, he saw a man running down the street whom he identified as the defendant. Miller described the man as being a 5-foot 9-inch black male with a moustache, wearing a two-piece rose colored outfit. As the assailant fled down the street in a southerly direction, Miller observed the defendant for 25 to 30 seconds. After the defendant disappeared behind the building, Miller let the two passengers out of the camper where they were soon joined by Patrick Colvin, a police academy cadet.

Patrick Colvin testified that he was driving westbound on 22nd Street when he reached the intersection of 22nd and Federal. As the witness slowed down, fearing that someone might get out of the camper, he heard a shot. Colvin testified that he noticed that the passenger leaned back and fell over to his left. Approximately an arm's length from the passenger door, the witness observed a 16-year-old black male, about 5 feet 9 inches tall, weighing about 125 pounds with a moustache and wearing a solid colored outfit. After firing the shot, the witness testified that the assailant, identified in court as the defendant, fled southbound on Federal. Colvin watched the defendant for 2 or 3 seconds, made a "U" turn and parked next to the camper. Then he had a conversation with Dale Miller and transported the injured man to Louise Burg Hospital.

Ronnie Rainey, a resident of the area who was on a ball field at 2250 State Street drinking water from a fire hydrant, testified that he heard a noise that sounded like a firecracker coming from the direction of 22nd and Federal. Rainey looked in that direction and saw Count Spence running toward him with his hands in his shirt. Spence told Rainey to run and the two men proceeded to the 2250 State Street building. After arriving at the building, Spence told the witness that he had shot a man and showed him a gun that he took from underneath his shirt.

Paul Carrol, an investigating officer, testified that at approximately 7:30 p.m. on June 13, 1973, he responded to a radio assignment and proceeded to Mercy Hospital. Upon his arrival, he observed Sergeant Donald Smith, Officer Young, and Mr. Miller. After talking briefly with Sergeant Smith, Carrol drove to 23rd and State and started talking to people in the area. The officer talked with a Mr. Marcus and then he went to the defendant's apartment. There, Carrol had a conversation with Mrs. Spence and, a short time thereafter, he talked with the defendant after he was advised of his constitutional rights. When Carrol left the Spence apartment, he visited Mr. Marcus at his home and then he talked with a Mr. Lay at his home.

The following day, the officer began his tour of duty around 6 p.m. and proceeded to Mercy Hospital where he had a conversation with Investigator Caccitolo of Area One Homicide. When he concluded the conversation, Carrol proceeded to the defendant's apartment while Caccitolo proceeded to Dale Miller's motel. When Carrol arrived at the Spence apartment around 8:30 p.m., the defendant was arrested and Mirandized. Then he was transported to Area One Homicide and placed in a large interview room where he was held until a lineup was conducted later that evening.

After the State rested, Mrs. Flossie Spence testified for the defense. Mrs. Spence testified that on June 13, 1973, she was in the Loop shopping and she returned home around 6:45 p.m. As she approached her apartment building, she saw her son and he accompanied her upstairs. After arriving home, the witness was told that her son had been in a fight so she rode the elevator to the first floor and told him to return to the apartment. While proceeding to their apartment, they stopped by Mrs. White's apartment and returned home around 8:30 p.m. Once Mrs. Spence returned to her apartment, she testified that Count remained home for the remainder of the evening. On ...


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