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People v. Houston

OPINION FILED JULY 12, 1979.

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

v.

MCKENNIE HOUSTON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ROMIE J. PALMER, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

After a jury trial in the circuit court of Cook County, the defendants, McKennie Houston and Jackie Robinson, were found guilty of robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-1) and theft (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1)). Defendant Houston was sentenced to a term of not less than 5 years and not more than 15 years, and defendant Robinson was sentenced to a term of not less than 1 year and not more than 3 years, in the Illinois Department of Corrections. The defendants appeal, and we affirm.

The issues asserted on appeal are (1) whether due process was violated where the State did not produce certain physical evidence for inspection by the defense; (2) whether the State failed to sustain its burden of proof of the offenses of robbery and theft where the testimony of the State's witnesses allegedly failed to prove the necessary elements of force in robbery and criminal intent; (3) whether defendants' conduct at the scene of the crime adequately supports a finding of guilty of robbery and theft under the theory of accountability; (4) whether plain error occurred when the trial court failed to instruct the jury regarding the element of criminal intent in the offense of robbery; and (5) whether the due process rights of defendants were violated when the State made an allegedly improper closing argument to the jury.

On July 12, 1975, Officers Soprych, Garza, Cole, Ford, Perrit, Sharp and Kerr were engaged in a decoy operation for the mass transit unit of the Chicago Police Department. As a decoy, Officer Soprych appeared intoxicated and disoriented for the purpose of being vulnerable to potential pickpockets.

Officer Soprych testified at trial that on July 12, 1975, at approximately 11:30 p.m., he was exiting the subway on the southwest corner of Clark Street, at the intersection of Clark and Division Streets, in Chicago, Illinois. He went into the alcove of a doorway located at 1154 North Clark Street. He was wearing a dark sport coat, a white shirt, tie, and a pair of dark pants. He stated that he looked tired and drunk, walking with a staggering motion, and his tie was in disarray. He wore a ring on a finger of his right hand and a watch on his left wrist. The ring was made of white metal with a large stone in the center and three smaller stones on either side. He stated it was a cheap ring, costing him $1, but its purpose was to simulate an expensive piece of jewelry.

The other members of the decoy team were located in proximity to Officer Soprych. Officer Cole was on the southwest side of the street, approximately 40 feet away. Garza was directly across the street from Soprych at the bus stop on Clark Street. Ford was on the east side of Clark Street, 30 feet north of Officer Garza. Another officer walked around the intersection of Clark and Division Streets patrolling all the corners, and the other two officers were in a restaurant doorway directly to Soprych's left.

Officer Soprych testified that he stood in the doorway for approximately 15 minutes before he saw defendants walking south on Clark Street toward the doorway. Defendant Houston went into the alcove where Soprych stood and asked whether he needed help. Officer Soprych did not respond and Houston attempted to put Soprych's left arm over his shoulder and Soprych pushed him away. He stated that pushing was a practice by decoy officers designed to discourage people who in good faith would be intending to render assistance. Houston shoved him back into the door and patted his clothing, including his pockets, waist and groin area. On cross-examination, defendants attempted to impeach Officer Soprych by showing that at the preliminary hearing he did not mention that force had been used against him.

Officer Soprych testified on direct examination that Houston removed the white metal ring from his finger, walked over to Robinson, and handed him the ring. Officer Soprych shouted, "Hit," an indication that a crime had been committed and something had been taken from the officer. After the signal was given, the other members of the decoy team converged at the scene, placing defendants under arrest and recovering the ring which had been thrown to the ground by defendant Robinson.

Officer Garza testified that he was across the street from Officer Soprych on the southwest corner of Clark Street. He observed defendants walking south on Clark Street and saw defendant Houston enter the alcove where Officer Soprych was standing. He testified that Houston was "feeling on Soprych," and Robinson was "looking in all directions." Then, Houston came out of the alcove and he and Robinson were "shaking or touching hands." At that point, Officer Soprych left the alcove, yelled "Hit," and all the other officers ran to the scene.

Officer Ford testified that he was on the southeast corner of Division and Clark Streets. He stated he first observed defendants walking eastbound on Division toward Clark, but when they reached Clark Street they walked in a southerly direction. When defendants saw Officer Soprych in the alcove, Houston entered and began patting down the officer. Robinson was in front of the alcove, looking from side to side. Ford noticed Houston and Soprych pushing and shoving, but could not determine who was pushing whom. Houston then walked over to Robinson and there was an exchange between them "like a handshake." He observed Houston walking back to the alcove and Officer Soprych yelled, "Hit." The officers of the decoy team ran to the scene, and Ford recovered the ring which he saw defendant Robinson throw to the ground.

Defendant Robinson testified that on the night of July 12, 1975, he and defendant Houston were on the southwest corner of the street, heading north toward a restaurant, when they saw a man in the alcove who "seemed like he needed help." Houston entered the alcove and asked the man whether he needed any help, as he acted as though he wanted assistance. Robinson stated there was no pushing or shoving. Houston attempted to place the man's arm over his shoulder in order to lift him, and, at that point, the ring fell from Soprych's finger. Robinson further testified that he had first seen the ring when Houston went into the alcove; it was then on Soprych's baby finger. He also saw the ring fall off Soprych's finger, picked it up, and went into the alcove. Soprych yelled, "Hit," and Robinson threw the ring down. They were then arrested.

The ring was inventoried at the police station and then returned to Officer Soprych. The ring was subsequently lost before trial during another decoy mission.

On the basis of the evidence, the jury found defendants guilty of theft and robbery. The defendants appeal their convictions.

Defendants' first contention on appeal is that they were denied a fair trial when the State did not produce a ring for inspection by the defense and therefore suppressed evidence favorable to the defense. The People argue that their failure to produce the ring for inspection by defendants did not deprive defendants of a fair trial since the omission did not constitute suppression of ...


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