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People v. Rudolph

OPINION FILED JUNE 27, 1977.

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

v.

LARRY RUDOLPH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE E. DOLEZAL, Judge, presiding.

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

After a jury trial, Larry Rudolph (defendant) was convicted of attempt armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 8-4) and acquitted of three counts of murder (Ill. Rev. Stat. 1973, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)). Larry White was jointly charged and tried with defendant and was acquitted of all four offenses. Defendant was sentenced to 6 years and 4 months to 20 years. He has appealed.

In this court, defendant contends that his conviction of attempt armed robbery was legally inconsistent with his acquittal of murder; he was not proved guilty beyond a reasonable doubt; the trial court erred in permitting portions of co-defendant White's repudiated confession inculpating defendant to be placed before the jury and the court improperly denied defendant's motion to exclude reference to his three prior convictions of misdemeanor theft. The State responds that defendant was proved guilty beyond a reasonable doubt; neither legal nor logical consistency of verdicts is required since differing verdicts reflect jury leniency and the use of the inculpatory portions of White's statement did not prejudice defendant because the statement was used solely for impeachment, defendant's attorney cross-examined White and a limiting instruction was given. The People further assert that defendant's misdemeanor convictions were admissible as involving dishonesty and no abuse of discretion occurred in this regard.

Osie McCorkle testified for the State that she shared an apartment at 4544 S. Woodlawn in Chicago with Joseph Brown who used it for sale of wine and whiskey to the neighbors. At about 10 p.m. on September 17, 1973, two men wearing black masks broke into the apartment. The man who kicked her door open wore a goatee and was carrying a pistol. He forced her into her bedroom and onto the floor at the foot of the bed where her adult son, Sammy Collins, was sleeping. Collins had a gun on a chair near his bed. The man with the goatee demanded to know where the money was. She recognized his voice as belonging to defendant. The witness heard defendant say, "Don't do it," and then heard gunshots at the foot and head of the bed. As both intruders fled the apartment, defendant reached toward his back and said, "Ow." The police were called and the witness' son was taken to a hospital where he was dead on arrival. She described the bearded intruder to the police as being 5 feet 8-9 inches tall and having worn black clothing, including a black turtleneck sweater. In court, the witness identified a photograph of defendant, taken later that evening in the hospital, as depicting the goatee visible under the black mask worn by the intruder with the pistol. She was unable to identify the other man.

On cross-examination concerning the basis of her identification, the witness testified that she had seen and known defendant in the neighborhood for 3 or 4 years. During that time she had spoken to him many times. Prior to September 17, she saw defendant every evening when she got off the bus. She admitted testifying at the preliminary hearing that she did not "exchange any words" with defendant before September 17. However, at the same preliminary hearing she also testified that she had heard defendant talk but did not have a conversation with him.

Helen Pritchett testified that on September 17, she was defendant's friend and lived at 4518 S. Woodlawn where defendant kept his clothes. Between 10 and 10:30 that evening, defendant and another man came to the apartment. Defendant was dressed in black pants and a black shirt. At defendant's request she gave him a black turtleneck shirt. On cross-examination the witness testified that Larry White looked like the man who accompanied defendant but she could not be sure. She was certain, however, that White came to her apartment 15-20 minutes later and told her defendant had been shot. White helped defendant into the apartment and asked the witness to call for help. She left the apartment, leaving defendant in bed, and telephoned for an ambulance and the police. The police arrived and defendant was taken to the hospital. Later that evening, on two separate occasions, the police returned to her apartment. Once they found a gun under the mattress on which defendant had been resting. Later they also found two black masks. The witness testified that defendant had some "teeshirts" made of the same type of material as these masks.

Chicago Police Officer Lis testified that he and his partner went to the Pritchett apartment at 10:30 p.m. in response to a radio call. He found defendant there, wounded. Defendant told him that he had been shot in an encounter with two men on Woodlawn, north of 47th Street. Larry White said he could identify the assailants and the officers placed him in a squad car and "toured the area." At that time, they received another call stating that a man had been shot at McCorkle's Woodlawn address which was separated from the Pritchett apartment by a vacant lot "three or four houses" wide.

Officer Rotkvich testified that he and his partner went to McCorkle's between 10:45 and 11:50 p.m. where Osie McCorkle provided a partial description of the intruders. Later, the officers returned to the station where White was being held. They advised White of his Miranda rights. He said he understood them and stated his willingness to talk about what happened that night. White said he had been near 47th and Woodlawn and had decided to make some money. He went to 4518 Woodlawn where he got a mask. White left that address and went to 4544 Woodlawn where he broke open the door, while wearing a mask. The woman who had answered the door was ordered into the bedroom. As he entered the bedroom, shooting started and he fled to 4518 Woodlawn where he removed his mask. The gun used in the shooting was left at the latter address.

Officer Rotkvich then spoke with Officer Minton who left the station and returned with a revolver which White identified as the gun involved in the shooting. The witness went to the Pritchett apartment where he recovered two masks, a black T-shirt and a pair of black pants. At the station, White said he had used one of the masks that night. The witness further testified that White had not been beaten in his presence and that White had not complained of physical abuse by any member of the police department.

A police firearms expert testified that a bullet removed from the body of the deceased had been fired from the gun found in the Pritchett apartment. In his experience it could not have come from any other gun. A fired bullet, found in the hallway, was not fired from that gun. There was medical evidence that the bullet which wounded defendant entered at his armpit and exited just to the left of the middle of his back.

Assistant State's Attorney Pisani testified that he arrived at the police station where White was being held at approximately 3 a.m. He advised White of his rights and White said he was willing to talk. White made an oral statement similar to the statement allegedly made by White to Officer Rotkvich. On cross-examination, the witness testified that White had not said that he himself kicked in McCorkle's door, that he had a gun or that he had shot anyone.

A court reporter arrived and White's statement was repeated in question and answer form and transcribed. A 27-page transcript was identified by Pisani as the statement made by White. The witness further testified that White had not been beaten or struck while the statement was being made. Also White never told him that he had been beaten or coerced by the police.

This exhibit, which included statements inculpating defendant, was the subject of a pretrial motion for severance by defendant and a motion to suppress by White. The State agreed to excise all references to defendant from any testimony regarding the statement and the court denied the motion for severance. At the suppression hearing, White testified that the confession was the product of physical coercion by the police. The court held that the statement had been voluntary.

Larry White testified at trial that on September 17, 1973, he met some friends at 47th and Lake Park. They drank some bottles of wine together. White saw defendant when White went to buy more wine. He had not seen defendant previously since 1967 or 1969. The witness, defendant and another man separated from the group and walked down 47th Street. After stopping in two bars, White and defendant parted company at 46th and Woodlawn. White visited a woman friend for about 30 minutes, beginning at 9 or 9:30 p.m. White then left, walked north on Lake Park and turned west into an alley between 44th and 45th Streets. Hearing one or two gunshots from one-half to one block away, White went through a vacant lot onto Woodlawn where he saw defendant on the other side of the street. Defendant was holding his side, "sagging and staggering." White helped defendant upstairs to a second floor apartment. Helen Pritchett, whom White had never seen before, answered the door. After defendant had been helped into bed, they removed his black T-shirt and tended his wound. The police arrived and took White "riding around" in the vicinity. He was taken to an alley, beside McCorkle's apartment, where she was unable to identify him. White was then driven to the police station at about 12 or 1 a.m. where he was placed in an interrogation room.

The witness further testified that two officers beat and kicked him while he was handcuffed to a chair and told him the details of a false confession which he was to make later to an assistant State's Attorney. The story he was ordered to tell corresponded to previous testimony by State witnesses McCorkle and Pritchett. When the State's Attorney arrived, White told him the version of events forced upon him by the police. The prosecutor had read from a card but the witness did not understand what was being read. When he indicated his noncomprehension, the State's Attorney just continued to read from the card.

A court reporter was brought in. While White's statement was being taken, the police officer sitting next to White kicked him on the ankle. After the statement was completed, the witness was threatened further and incarcerated overnight. The next afternoon a police employee read White's statement to him and he was told to initial each page and sign his name at the end. He complied. The witness testified that some of the questions and some of the answers from the night before were not included in the statement read to him. White denied ever going to McCorkle's apartment or in any way participating in the attempt robbery or murder.

On cross-examination by the prosecutor, portions of the transcribed statement were used extensively and in some detail for impeachment purposes. Included in the attempted impeachment, over objection by defendant's attorney, were parts of the statement which directly implicated defendant as the principal actor in the offenses. Defendant's counsel also cross-examined White, drawing attention to portions of the statement dealing with White's presence with defendant in the Pritchett apartment prior to the shooting.

Defendant testified on direct examination that he had been convicted of petty theft in 1966, 1967 and 1968. The trial court had previously denied defendant's motion in limine to prohibit use of the convictions during cross-examination by the State.

Defendant's testimony paralleled White's version of the events occurring between their meeting at 47th and Lake Park and their eventual separation in the area. Defendant then went to Helen Pritchett's apartment where he kept his clothes. Pritchett was the mother of his son. He left the apartment to look for his child. After calling for the boy without success, he was returning to the apartment when he saw two men in dark clothes. One of them called defendant a name and shot him below the right armpit. While defendant was trying to get back to the apartment, White came to his aid and helped him into the building and eventually into bed. Defendant stated that he was 5 feet 10 inches tall. He denied ever seeing or possessing the revolver from which the fatal bullet had been fired. He also denied seeing the two masks put in evidence by the State. Defendant further testified that he had never been in the building at 4544 Woodlawn, had never kicked McCorkle's door or engaged in a gunfight with her son on September 17, 1973.

In rebuttal, the People called the court reporter who testified that during the proceedings, he did not see White being kicked or beaten and White did not complain of any mistreatment. The witness also testified that the transcript accurately reflected everything that was said by the assistant State's Attorney and by White.

The police employee who had read White's statement to him testified that she read each page slowly and stopped to get White's approval before turning each page. White made some minor corrections and seemed to understand everything that was read to him.

After closing arguments, the jury was instructed, in part, that evidence limited to one defendant should not be considered as to any other; evidence of prior inconsistent statements may be considered in deciding the weight of that witness' testimony, and a confession may not be considered against any defendant other than the confessor.

Defendant's first contention is that the verdict of guilty of attempt armed robbery is legally inconsistent with the three verdicts acquitting him of murder. The case most frequently cited in this regard is People v. Hairston (1970), 46 Ill.2d 348, 362, 263 N.E.2d 840 which approved the principle that logical consistency in verdicts "is not necessary, so long as the verdicts are not legally inconsistent." This test has been modified in Illinois. In People v. Dawson (1975), 60 Ill.2d 278, 326 N.E.2d 755, the supreme court held that there was no inconsistency where a defendant was acquitted of murder and felony murder but convicted of armed robbery. In this regard it is most instructive to read in Dawson the comments quoted on this problem from United States v. Carbone (2d Cir. 1967), 378 F.2d 420, 422-23, where the court of appeals pointed out that the salutary principle of leaving the jury "free to exercise its historic power of lenity" forbids allowing an acquittal on one charge to affect a simultaneous conviction. 60 Ill.2d 278, 280-81.

• 1 In this regard we note also the subsequent decision of this court in People v. Murray (1975), 34 Ill. App.3d 521, 340 N.E.2d 186. In an exhaustive opinion, after an analysis of the decisions, including Dawson, this court held that acquittals do not affect a conviction "and that neither legal nor logical consistency of verdicts is now required in Illinois." (34 Ill. App.3d 521, 537.) We note this same language subsequently cited as the conclusion of the court in People v. Malone (1976), 37 Ill. App.3d 185, 190, 345 N.E.2d 801.

Even under the former rule we find no legal inconsistency in the verdicts here. A comparison of the essential statutory elements of attempt and of the three forms of murder with which defendant was charged shows that each of these four offenses are distinct with different component elements. In addition we find no logical inconsistency in these verdicts as they cannot "be construed to involve both the acceptance and the rejection of the same theory of the case for the State or the same theory of the defense." People v. Murray (1975), 34 Ill. App.3d 521, 532.

The next issue is the contention that the evidence failed to prove beyond a reasonable doubt that defendant was guilty of attempt armed robbery. Defendant here reaches back to the issue of consistency of verdicts. He argues that his acquittal on the murder charges necessarily implied a finding by the jury that he was not present at the scene of the crime. This reasoning is directly contrary to the conclusion reached in Murray and Malone that acquittals do not affect convictions. The major premise in defendant's argument is based upon consideration of the acquittals from which defendant attempts to attack the conviction. This is completely impermissible. In this portion of the argument the single and only legitimate issue is whether the evidence is sufficient to support the conviction for attempt armed robbery beyond reasonable doubt without comparison with the acquittals or the probable reasoning of the jury in that regard. In Murray, the court pointed out that logical inconsistency of verdicts might ...


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