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People v. Smith

OPINION FILED DECEMBER 20, 1978.

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

v.

VICTOR SMITH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK W. BARBARO, Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The defendant, Victor Smith, was charged with the offenses of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2), and aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4). Following a jury trial in the circuit court of Cook County, the defendant was found guilty of robbery and sentenced to a term of two to six years in the Illinois Department of Corrections. The defendant appeals from that conviction. On appeal, the defendant makes arguments concerning the burden of proof, jury instructions, and alleged constitutional violations.

Prior to trial a hearing was held on the defendant's motion to quash the arrest and suppress evidence. Officer Robles, testifying for the State, said that on May 22, 1975, at about 3:50 a.m., he and his partner were on patrol in a marked police car when they halted a 1972 Cadillac which had failed to make a complete stop at the stop sign at 52nd and Halsted Streets in Chicago. Victor Smith was the driver of the Cadillac and was released without a ticket after he produced a driver's license and vehicle registration.

Within 20 minutes of that stop Robles heard a radio message indicating a suspect named "Vic," driving a 1972 Cadillac, was wanted for a strong arm robbery. Vic was described as a male Negro, 5' 10" or 5' 11" in height, and 150 to 160 lbs. in weight. The address of the robbery was also given. Robles had first observed the Cadillac about 200 to 300 feet from that address. The officers obtained the defendant's address and located him, still in his Cadillac, within 20 minutes of the time they received the message. The court denied the motion to quash arrest and to suppress evidence.

At trial the State's witnesses related the following facts: On May 22, 1975, Gwendolyn Johnson was employed as a barmaid at the Rumpus Room Cocktail Lounge. At 2:30 a.m., when she finished working, Johnson and her cousin and roommate, Evelyn Collins, looked for a cab to take them home. The defendant approached them and offered them a ride. The offer was accepted and the three walked to the defendant's Coupe de Ville Cadillac. Jessie, a friend of the defendant, joined them at the car and they drove to Johnson's apartment. During that ride, Johnson mentioned that she had been paid that evening. The four persons went up to Johnson's apartment and the men soon left, telling Johnson and Collins that they would be back.

Twenty minutes later Johnson saw the defendant and another man standing at her front door. Johnson went downstairs, opened the door, and the defendant and Norman Witherspoon entered. Johnson thought Witherspoon was Jessie when she opened the door. Witherspoon grabbed Johnson, put his arm around her neck and stuck a screwdriver in her back. The defendant led the way up to Johnson's apartment while Witherspoon held on to Johnson. At Witherspoon's direction, Johnson called her cousin, who emerged from the bathroom. The four of them went to the front room where Witherspoon asked Johnson for her money. Johnson removed $55 from her bra and gave it to Witherspoon. Witherspoon accused Johnson of having more money, but she denied it.

Witherspoon ordered Johnson and Collins to lie down on the floor. He kicked Johnson in the ribs and head while demanding more money. Johnson told Witherspoon she did not have more money and that he could take anything else he wanted. Witherspoon asked for some string and Johnson directed the defendant to the kitchen drawer. The defendant gave the string to Witherspoon. At Witherspoon's direction, the defendant unplugged the television and began to wrap it up, along with the stereo.

Witherspoon continued to demand more money from Johnson and cut her wrist with the screwdriver when she denied having any more. He then tied up Johnson and Collins. The men left without the stereo or television and locked the women in the apartment. Johnson called out the window to her mother, who lived in the building in front of Johnson's apartment. Johnson's mother, along with some other family members, came to the apartment with an extra set of keys. Johnson's aunt called the police and they arrived as Johnson was being untied. The women told the police they knew the defendant but did not know his last name. Johnson was taken to the hospital after being interviewed by the police.

Johnson received a phone call from the defendant while she was in the hospital. The defendant offered her his $200 bond if she would not show up in court.

Officer Epstein's testimony was essentially the same as Officer Robles', his partner, except that Epstein testified that the two officers proceeded to the scene of the robbery upon receiving a radio message, while Robles' testimony did not include this fact. Epstein observed that Johnson had been "roughed up," and he described the wounds on her body. When Johnson said she knew one of the perpetrators as "Vic," Epstein asked if his last name was Smith, and Johnson said she believed it was. Epstein also testified that upon the defendant's arrest he found the defendant's car keys but did not recall finding Johnson's apartment keys or the screwdriver. He testified that he found $20 in the possession of Witherspoon, who was arrested with the defendant.

On cross-examination, Epstein admitted his arrest report did not indicate that he went to the scene of the crime and talked to Johnson after getting the radio message, nor that he had personally observed Johnson's physical condition. Epstein said he had completed two reports of the incident. At a side bar conference, defense counsel indicated that he had only one of the reports and asked for the other, which Epstein admitted using to refresh his recollection before taking the stand. The Assistant State's Attorney responded that he did not have a copy of the report.

The only witness called by the defense was Officer Moss who testified that he was called to the scene of the crime where he saw Johnson lying on the floor, confused, hysterical and screaming. Moss testified that Johnson appeared to have been beaten up, but that he could recall no bleeding.

First, the defendant contends that the testimony of the State's witnesses was so improbable, unconvincing and contrary to human experience as to raise a reasonable doubt of guilt of the defendant. The defendant bases this argument on many points, including the facts that he made no attempt to conceal his identity during the robbery even though Johnson and Collins both admitted knowing the defendant prior to the robbery; the defendant made no attempt to avoid apprehension by the police following the robbery; the testimony concerning the extent of Johnson's injuries was conflicting; neither the $55, Johnson's apartment keys, nor the screwdriver were found in the defendant's car at the time of the arrest; and that the descriptions of the defendant given the police by Johnson and Collins not only conflicted with each other, but also conflicted with the description which Robles said he received on the radio.

The People respond that the evidence was consistent, credible, corroborated, and more than sufficient to establish the ...


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