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People v. Smith

OPINION FILED SEPTEMBER 19, 1977.

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

v.

ARCHIE SMITH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. PHILIP ROMITI, Judge, presiding.

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

After a jury trial, Archie Smith (defendant) was found guilty of murder (Ill. Rev. Stat. 1971, ch. 38, par. 9-1) and of attempt armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 8-4). He was sentenced to 50 to 100 years and he appeals.

In this court, defendant advances eight contentions, some of which consist of a number of separate points. His arguments raise issues regarding polling of the jury; final argument of the prosecution; defendant's motion to suppress statements; quality of his legal representation; instructions to the jury; severity of punishment and proof beyond a reasonable doubt.

We wish to make a general statement concerning this appeal. Defendant's brief is 94 pages and cites approximately 100 cases. The State's brief consists of 146 pages, citing more than 160 authorities. In addition, defendant has filed a reply brief of 52 pages, citing and attempting to distinguish more than 60 cases. This process of citing and distinguishing cases is thus attenuated to such an inordinate and unnecessary extent that it threatens to extend to the outer reaches of infinity and beyond. Considerations of space and time prevent us from dealing with this unmanageable welter of authorities. We have, therefore, contented ourselves with relying upon established legal principles and with citing the cases which support them.

Defendant filed two pretrial motions to suppress his confession. His brief argues only that the confession was involuntary because of insufficiency of Miranda warnings. The trial court conducted a hearing on this issue. The only testimony received was from police officers, an assistant State's Attorney and the court reporter. The totality of this evidence is that defendant was given proper Miranda warnings by the police and by the assistant State's Attorney on at least four different occasions. The details of two of the warnings are set out in written statements made by defendant to the assistant State's Attorney.

In a situation of this type the frequently stated legal principles are clear. This court may not disturb the result reached by the trial court unless it is contrary to the manifest weight of the evidence. (See People v. Torres (1973), 54 Ill.2d 384, 392-93, 297 N.E.2d 142; People v. Burbank (1972), 53 Ill.2d 261, 266-67, 291 N.E.2d 161, cert. denied, 412 U.S. 951, 37 L.Ed.2d 1004, 93 S.Ct. 3017; People v. Luckett (1977), 48 Ill. App.3d 536, 541-42, 362 N.E.2d 1297, and authorities there cited.) We find specifically that the voluntary nature of the confessions here is overwhelmingly proved by the evidence.

Defendant's argument is directed to the fact that the assistant State's Attorney first spoke to defendant and gave him the warnings. He then spoke to defendant regarding his desire for counsel. The statements made by the defendant at that time are completely ambiguous. Defendant stated, "I am not saying I don't want to make a statement"; "I'd like to reserve the right to make a statement to you at this time pending some counseling"; "You know, because as I explained there was litigation [sic] between the two detectives and myself." At this point the assistant State's Attorney terminated the questioning and left the room. He testified that at that moment defendant shouted to him, "I told you I wanted to give you a statement without my lawyer here, but I didn't want to be charged with murder."

However, defendant immediately asked a policeman who remained in the room to recall the attorney. Defendant told the officer that he did not want to be charged with murder, he did not need any attorney present and he wished to speak to the assistant State's Attorney. Accordingly, some 4 minutes later, the assistant State's Attorney returned to the room and again gave defendant a statement of his Miranda rights. A court reporter's transcription of this interview shows a clear and complete statement of these rights and reflects that defendant persisted in his desire to make a statement without an attorney present. We add that defendant also stated during the subsequent interview that he had attended college for 3 years.

• 1 We find this situation governed by People v. Morgan (1977), 67 Ill.2d 1, 364 N.E.2d 56, affirming the decision by this court of People v. Morgan (1976), 39 Ill. App.3d 588, 350 N.E.2d 27. The supreme court analyzed Michigan v. Mosley (1975), 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321, and, applying the reasoning of that authority, held that an initial request for an attorney may be voluntarily withdrawn. In the record before us it is extremely doubtful as to whether defendant ever expressed a desire for counsel. He reiterated his desire to obtain leniency in exchange for a statement. He asked if he could do so by implicating his accomplice. He expressly placed significance upon the question of "who actually pulled the trigger." The attempt by defendant to differentiate Morgan is unacceptable. Defendant urges that he never recanted his desire for a lawyer and was never advised that he could have counsel present during the questioning. The record is completely to the contrary. We affirm the ruling of the trial judge concerning the voluntary nature of the statements made by defendant.

Turning to the issue of proof beyond reasonable doubt, a witness for the State attended a late evening motion picture performance in a shopping plaza on the south side of Chicago with several of her friends. She noticed two men standing in the lobby close to the door of the manager's office. No other persons were present at that time. She heard a "pop", then a scream from the manager, saw him fall to the floor and saw the two men running away from his office. She gave the police general descriptions of these men and their clothing. She stated that one of them was carrying a bag of some type. It appeared to her that one of the men, who was black, carried a pistol. She noted them because, "[T]hey didn't seem to have a purpose."

A number of police officers testified. Two of them entered the theater after hearing a radio message. They saw the manager dead on the floor outside his office. He was covered with blood. There were holes in the front and rear of the body. They also noticed a laceration on the left side of the head. They picked up a spent shell casing close to the body and a spent bullet on the office floor.

The police checked the immediate area and spoke to a citizen. Five minutes later this citizen saw a man running across the street and then walking quickly, looking over his shoulder. She also saw a police car approaching rapidly. She testified that the man walked up to a porch on Seeley Avenue and attempted to open the door. He then threw an object into an adjoining vacant area. At this point the police car which she had seen earlier stopped at the porch and the man was placed under arrest. She saw the police officers enter the vacant lot and return to the front of the house carrying a gun. Police officers from the squad car testified to having seen this man run across 96th Street in the immediate vicinity and then approach the porch, stop and throw an object into the vacant lot. Defendant was identified by police testimony as being the man who had thrown the gun into the lot. Police retrieved the gun and it was received in evidence. It was a Star blue 9-millimeter automatic pistol fully loaded and cocked.

There was police testimony that when defendant was arrested he was perspiring and short of breath. His clothing was in disarray and some foliage and leaves were adhering to his shirt. He was wearing a white and blue shirt which corresponded to the description given to police by the young theater patron.

Early next morning other police officers were summoned to a home in the same general area. A citizen resident gave the officers a light-brown man's handbag, a box containing bullets and additional items not material here. She found this property in the driveway adjacent to her home. The officer then went to a nearby restaurant where he arrested a man identified as Joseph Collins, a coindictee of defendant, not involved in the trial or in this appeal. The police described Collins as a black man and in other details approximating the description given by the theater patron. After speaking with Collins that evening, a police officer searched the rear yard of another residence in the area and found a Browning 9-millimeter blue automatic pistol which had been hidden beneath foliage.

Forensic evidence described the head laceration of the deceased as less than 1 inch long, patently the result of trauma from a gun butt moving in a downward direction. In the opinion of the medical expert, the Browning pistol found behind the residence on Leavitt Street, or a gun like it, caused the laceration rather than the pistol found in the vacant lot at the Seeley Avenue address. The medical expert testified that there were two wounds on the body, one evidencing entrance and another exit of a bullet. This bullet wound resulted in major internal bleeding and was the cause of death.

Qualified ballistics evidence was that the spent bullet found in the manager's office had been fired from the Star automatic pistol found in the vacant lot on Seeley Avenue. The expended cartridge case found in the office could have been ejected only from this same Star automatic pistol. In the opinion of the expert, neither the bullet nor the cartridge case had come from the Browning pistol found behind the residence on Leavitt Street.

In addition to the above evidence, when defendant was in police custody he gave two written statements to an assistant State's Attorney. Both of them were taken in shorthand, transcribed by the court reporter and read into evidence. The first of these statements contains primarily background information and discussion between defendant and the attorney regarding the type of charges which might possibly be filed. The second statement pertains to defendant's guilt. Defendant stated that Collins and a lady named Adrienne Taylor came to visit him on the evening of July 19, 1973. She remained in a car and Collins spoke to defendant. Collins told defendant about a possible armed robbery. Collins had three loaded 9-millimeter automatic pistols carried in a brown leather purse with shoulder strap. Collins told defendant that the girl would drive the car for them.

The statement continued to the effect that Collins told defendant to guard the door of the theater in the shopping plaza. They drove to the plaza and parked the car about 75 to 100 yards from the theater. Collins went in first to check the lobby. He then signaled defendant to enter. The guns had been distributed to the three participants. Defendant and Collins entered the washroom. Collins told defendant to guard the front of the theater and not let anyone in or out. The statement described the manager's office as three-sided with an open front. Defendant went to the door and Collins entered the office and pulled the gun from his belt. Defendant heard the manager state that he had no money. Collins struck the manager with the gun on the side of the head. As the manager fell, he called for help. Collins started moving back then fired the pistol. Collins was then from 5 to 10 feet from the victim.

Defendant further stated that he then ran out of the door and saw three or four people standing near a staircase. He told them to run and then ran down the stairs and across the parking lot. He could hear Collins behind him. They both ran together across the street and down an alley. Defendant gave the gun back to Collins when they were some 4 blocks away and Collins put it into the bag. A police car came into view and Collins ran away over some hedges. Defendant started to walk up the stairs of the Seeley Avenue residence. He was arrested by the police. He denied that he had ever fired the gun of which he had possession during the incident. The statement reflected that it was made by defendant simply in order to tell the truth, not because of promises or the use of force.

The defendant's statement corroborates all of the remaining evidence of guilt with one exception. The forensic evidence is that the deceased was struck with the butt of the Browning gun found behind the residence on Leavitt Street while the ballistics evidence is that the fatal bullet was fired from the Star automatic found in the vacant lot on Seeley Avenue. In his statement defendant said that he did not abandon a gun; he did not strike the victim with either gun; he did not fire either gun and was not in the manager's office when Collins fired the fatal shot. The only logical solution to defendant's disclaimer of firing or abandoning a gun is that it is simply an attempt to place the blame for the actual shooting upon Collins.

However, this attempt was ill-conceived. Since defendant concedes that he cooperated with Collins in the plans for the armed robbery and was an active participant therein, defendant would be criminally responsible for the murder on the theory of accountability even though he did not actually fire the fatal shot. (See People v. Morgan (1977), 67 Ill.2d 1, 364 N.E.2d 56, and People v. Tate (1976), 63 Ill.2d 105, 345 N.E.2d 480.) Even the non-prosecution or acquittal of the person who committed the offense would not be a bar to successful prosecution of the defendant on the theory of accountability. See People ex rel. Scott v. Master Barbers & Beauty Culturists Association (1973), 9 Ill. App.3d 981, 987, 293 N.E.2d 393.

• 2 In our opinion, a simple reading of the evidence is sufficient refutation of defendant's claim regarding absence of proof beyond reasonable doubt. It is true that the young theater patron made no in-court identification of defendant; however, her general description of the two offenders and of their actions is supported by the record. The forensic and ballistics evidence fully support the guilty verdict. The police testimony regarding defendant's flight and their observation of his conduct in discarding the loaded pistol links with the ballistics evidence. The detailed confession corroborates all of this evidence with the single exception above pointed out. In our opinion, the evidence before us is sufficient to constitute strong proof of guilt beyond any reasonable doubt. People v. Owens (1976), 65 Ill.2d 83, 90, 357 N.E.2d 465, cert. denied (1977), 430 U.S. 955, 51 L.Ed.2d 562, 97 S.Ct. 1600.

The argument by the prosecution to the jury is reflected in some 35 pages of the transcript. Defendant has culled some 13 portions of the argument which he now claims to be prejudicial. We will state them in numbered order:

(1) The prosecutor stated that defendant "is basically not sorry."

(2) The prosecution need not raise their voices and shout because "the silent witness in this ...


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