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People v. Day

OPINION FILED SEPTEMBER 21, 1979.

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

v.

CHARLES E. DAY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. SCOTILLO, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendants were charged by information with attempt armed robbery (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4 and 18-2) and murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1). Following a jury trial, they were found guilty of both offenses but judgment was entered on the murder charge only. Day was sentenced to a term of 40 to 65 years, and Davis received a term of 50 to 75 years.

Each defendant has filed a separate brief on appeal. Both defendants contend that they were denied effective assistance of counsel. In addition, Day contends: (1) he was denied his statutory right to a speedy trial; and (2) evidence of the circumstances of his arrest was improperly admitted. Davis contends: (1) he was not proved guilty beyond a reasonable doubt; (2) an alleged statement by defendant Day was improperly admitted; and (3) his sentence is excessive. We affirm. The pertinent facts follow.

Defendants were arrested on March 2, 1976, for the murder of Solomon Marcus. The public defender was appointed to represent both defendants. Prior to trial Davis made a motion for severance based on the belief that Day's defense would be conflicting with his own. After a hearing, the motion was denied.

Day made a pretrial motion for his discharge because of an alleged violation of his statutory right to a speedy trial. (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(e).) This motion was also denied after a hearing. Day also sought to exclude testimony regarding the circumstances of his arrest on an unrelated charge. The trial court reserved ruling on this point, but at trial the testimony was admitted.

The following pertinent evidence was adduced at trial.

For the State

Chicago police officer John Hennis testified. On February 7, 1976, he went to 4000 West Fifth Avenue to investigate a shooting in a grocery store. He saw the victim, Solomon Marcus, lying face down on the floor, apparently dead. He removed a .357 magnum pistol from the victim's waistband and removed three expended and three live cartridges. He received a description of the assailants and broadcast it over his police radio.

Minnie Lee Jackson, also known as Minnie Lee Green, testified. On February 7, 1976, she was shopping in the grocery store with her grandson. Two young men entered the store before her. One went to the rear of the store and the other remained near the front door. She didn't pay attention to these men and went to a counter which Solomon Marcus was behind. A small child was also standing at the counter. She asked Marcus for several items and she walked towards the rear of the store. One of the men walked up to the counter and stood next to her. He pulled out a gun, pointed it at Marcus, and said "Stick 'em up." He then started shooting at Marcus, who staggered and fell. The man ran out the door. The second man pushed her against a counter, fired a shot, and ran out the door. She could not identify the two except to say they were young black men. She looked at Marcus and then left the store. On the way out she met Jacob Williams who agreed to stay with the victim until she could get help. She went home and called the police.

Jacob Williams testified. He arrived at Fifth Avenue and Keeler by bus and intended to go to the grocery store. He heard someone shout that "Lee" had been shot and saw two men run to a 1968 or 1969 Cadillac, blue with a black top, which was facing north on Keeler. The men were tall and of medium build. After the car pulled away, he went to the store, where he saw Minnie Jackson, who asked him to stay with Marcus. Jackson noticed that the victim had a gun in his waistband.

On cross-examination Jackson said the car was parked northbound on Keeler but admitted he told police that it was westbound on Fifth Avenue. He said that the car left at a high rate of speed.

James Boyd testified. He was driving a bus past Fifth and Keeler at the time of the shooting. He heard a shot and saw two men running from a grocery store to a 1967 or 1968 Cadillac. After they got in the car, it went north on Keeler. The men were black, but he did not see their faces.

Richard Thompson, a Chicago police officer, testified. He conducted a physical examination of the crime scene and recovered a bullet fragment. It was stipulated that fragment was part of a .38-caliber bullet and that it could have been fired from a .357 magnum revolver.

Investigator Michael O'Connor of the Chicago Police Department testified. On March 1, 1976, a man named William Tensley came to him and spoke to him concerning the shooting. O'Connor was not familiar with the case but, after checking police file, learned that a homicide was involved. He then turned the matter over to homicide investigators. Tensley led the police to Charles Day's residence where Day was arrested. The police also arrested Ivory Davis at his home.

William Tensley testified. Ivory Davis is his first cousin and he had known Charles Day for about three years. On February 7, 1976, Ivory Davis asked him to repair a car which allegedly belonged to Day. The car was a 1968 Cadillac four door, blue with a black vinyl top. He identified a photograph as being the car except for some body damage to the car. He checked the car and was returning it to Davis' house, when Davis told him to drive the car. He drove to Fifth and Keeler and parked on the corner. Davis said he was getting something to eat and Tensley requested some pop. Day and Davis went into the store. Tensley remained in the car with the motor running. He noticed a lady and a child enter the store after Day and Davis. He also noticed a bus on the corner. He heard some shots and looked in the direction of the store. He saw Day "ducking" inside the store, and then the two came out of the store "walking fast" and got into the back of the car. Tensley saw that Davis had a .32 short barrel pistol and that they both had money. He heard Day tell Davis, "I sure liked the way you popped that dude. I thought he had me for a minute but you came right up on time." Tensley drove to about 15th and Troop, got out and gave them the keys. He recalled seeing a "title paper" in the car in the name of Larry Lewis of Chicago Heights.

On March 1, 1976, he voluntarily went to a police station and spoke with Officer O'Connor. He directed the police to the homes of Davis and Day. Later, he was handcuffed at the police station but was able to pick the lock and escape. He returned later and spoke with Officer O'Connor. He denied knowing a woman named Joann Marshall, or having any problems or fights with either Davis or Day.

On cross-examination Tensley admitted that at the station he felt that he was under arrest and a suspect in the case. He said that he had driven the car several times prior to February 7, 1976, and continued to drive it for two weeks after the incident. He also stated that he did not have any idea of what was going on at the time of the incident and that he drove away from the scene at a normal rate of speed.

Dr. Eupis Choi, a pathologist, testified. He performed an autopsy on the body of Solomon Marcus. In his opinion Marcus died from a bullet wound in the chest, which penetrated the heart. He recovered a bullet from the body and both sides stipulated that it was a .32-caliber bullet.

Terrence Gall, an Oak Park police officer, testified. On February 18, 1976, at about 2 a.m. he and his partner stopped a greenish-blue Cadillac for failure to display State license plates. In response to his request for a driver's license, Charles Day identified himself as Charles Davis and gave him an illegible traffic ticket. He asked for further identification and the car's registration, but Day did not produce any. He then asked Day to follow him to the police station. Day followed for several blocks but then turned at a corner and proceeded at a high speed. The officers chased the Cadillac at speeds up to 60 or 70 miles per hour. After the chase continued for some distance, the car crashed into an elevated train structure. Day was arrested. A check of the vehicle identification number revealed that the car had been reported stolen. A defense motion for mistrial based upon this evidence of other crimes was denied.

Investigator Robert Padgorny testified. On March 1, 1976, he spoke to William Tensley and then went to Day's house. He was admitted by Mrs. Day and permitted to look upstairs for Charles. In a bedroom on the second floor which Mrs. Day indicated was Charles' he saw a leather shoulder holster and 1975 Illinois license plates, number YN 6763. He identified these items at trial. He also saw a handgun. He heard voices downstairs and saw that Charles Day had been arrested. He then went to the Davis residence and placed Ivory under arrest.

On cross-examination Padgorny stated that prior to talking to Tensley there was no indication of defendant's involvement in the case. He did not ascertain who owned the items found in the bedroom. He knew that the pistol he saw was a .22-caliber gun.

Investigator Fred Stone of the Chicago Police Department testified. He was with Officer Padgorny when Day was arrested. Mrs. Day had directed them to the bedroom which she indicated was Charles'. He recovered a pistol from the room and identified it at trial as a .22-caliber revolver. He also saw the holster and license plates which Padgorny had ...


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