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People v. Smith

OPINION FILED MARCH 19, 1979.

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

v.

GREGORY SMITH ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS ROSENBERG, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Following a consolidated jury trial, defendants, Gregory Smith and Ernest Moore, a/k/a Anthony Smith, were each found guilty of two counts of armed robbery. The circuit court of Cook County entered judgment on the jury's verdict and sentenced Gregory Smith to a term of imprisonment from six to ten years. Anthony Smith received a sentence of from six years to six years and one day. Both defendants appeal.

Complainant, George Brown, testified that at the time of the incident, November 20, 1975, he lived in an apartment in Chicago with Lynne Perry. Brown had known Anthony Smith for about five months and his brother Gregory Smith for roughly two weeks. Anthony Smith had visited Brown's apartment on five or six prior occasions and complainant considered him to be a social friend. Gregory Smith, however, had only been to Brown's apartment on one prior occasion.

Brown further testified that sometime after midnight on Thursday, November 20, 1975, he received a phone call at his apartment from Anthony Smith. Smith asked if he and his brother could visit Brown and Brown invited them over. Defendants arrived at complainant's home about 15 minutes later, accompanied by an unidentified man. Brown testified that the unknown man asked him for a glass of water. When Brown returned from the kitchen with the water, the third man was pointing a handgun at complainant. Complainant was warned that if he made any noise he would be killed.

At this point, Brown was directed to call Lynne Perry out of the bedroom. Brown and Perry were forced to lie down on the floor and their hands were tied behind their backs. Gregory Smith tied them up with an 18-foot extension line that he had pulled out of the phone. Gregory Smith then proceeded to take Brown's watch and ring. While the victims were being tied up, Anthony Smith disconnected Brown's stereo set and the man with the gun stood directly over the victims, pointing the gun at them.

Brown further testified that Anthony Smith next left with his stereo equipment and then Gregory Smith and the third man carried him into the back bedroom and threw him across the bed. They took a suede and a leather coat from the room and approximately $50 in currency from Brown. After complainant heard the men leave, he was able quickly to free his hands. Brown testified that he ran out the front door and saw the three men get into Perry's car which was parked across from the apartment. The robbers had apparently also taken Perry's car keys. Brown cried out for help as the men drove off. He then returned to his home, untied Perry and called the police.

About five minutes later two police officers arrived and Brown recounted the incident, listed missing items and supplied a description of the robbers. Brown also provided the police with defendants' names and Anthony Smith's address.

On the following day, Brown observed Perry's car near his home, notified the police and subsequently regained possession of the car. None of the other stolen items was recovered.

The defendants stipulated that on November 27, 1975, Brown and Perry, independently, identified both defendants from a group of police photographs. The defense further stipulated that on January 8, 1976, Brown and Perry, also independently, identified Gregory Smith in a police lineup.

Finally, Brown testified that at the time of the robbery he worked part-time at Elman Shoes. He denied selling heroin to defendants and denied arranging a sale of heroin to Anthony Smith and a friend at a local bar. He testified that he never sold heroin.

On cross-examination, Brown testified that on two occasions prior to November 20, 1975, his stereo equipment was stolen. When asked specifically when those occasions were, Brown replied:

"Roughly three weeks after I met Anthony the first time, I was broken in. He had occasion to be in my home again — ."

Counsel for the defense objected, contending that the answer was not responsive. The record indicates that the trial court did not expressly rule on the objection. Nevertheless, through further questioning Brown supplied a more specific answer, stating that the first robbery occurred in June of 1975.

On redirect examination, the State also questioned Brown concerning whether the prior burglaries occurred after he had met Anthony Smith. Defense objections to this line of questioning were overruled and motions to strike Brown's testimony and for a mistrial were likewise denied by the trial court. Defendants maintained that Brown's testimony was volunteered, unresponsive and served to prejudice the jury by implying that Anthony Smith was involved in prior thefts from Brown's apartment. However, on redirect and recross examination, it was clearly established that the first burglary occurred three months rather than three weeks after Brown met Anthony Smith. Moreover, the trial court allowed the testimony to stand because it did not support an inference that defendant had committed the crimes.

Lynne Perry, Brown's girlfriend, next testified for the State and substantially corroborated Brown's account of the November 20, 1975, incident. On cross-examination, Perry stated that she had seen Anthony Smith four or five times before the incident, but knew neither Gregory Smith nor the third man. Perry also testified that she did not know the whereabouts of George Brown while she was at work on November 19, 1975. On redirect, Perry established that the prior two robberies of stereo equipment occurred on or about September 30, 1975, and October 31, 1975.

Officer Robert White and Investigator Donald Foulkes also testified for the State concerning their investigation of the robbery and the arrest of defendants. It is not necessary for our resolution of the issues presented in this appeal to recount their testimony, other than to state that no evidence technicians were called to the scene to take fingerprints and no prints were recovered from Perry's vehicle or Brown's apartment.

Renee Saunders was the first alibi witness for the defense. She testified that she had been acquainted with defendants for several years and that she was Anthony Smith's girlfriend. She said that at 2:30 p.m. on November 19, 1975, she was at Anthony Smith's home with him, together with certain relatives of both. At 2:30 p.m. Anthony Smith left his home alone, but returned at 4:30 p.m. At that time the same group of people remained at the ...


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