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People v. Smith





APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN E. SYPE, Judge, presiding.


Defendant Roger Gale Smith was found guilty by a Winnebago County jury of the offense of armed robbery, in violation of section 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 18-2). He was sentenced to serve a term of six to 18 years imprisonment. On appeal, he argues that: (1) he was denied a fair trial when the State was allowed to prove that the gun and car used in the robbery had previously been stolen; (2) the trial court erred in admitting certain physical evidence where the State failed to lay a sufficient foundation for its admission; (3) the court erred in permitting the prosecutor to impeach a defense witness by prior inconsistent statements where the prosecution failed to lay a sufficient foundation on cross-examination; and (4) the trial court erred in giving an instruction defining "voluntary possession." We affirm.

The pertinent facts are as follows. At about 11:15 p.m. on the evening of February 3, 1977, Mark Benner (not a party to this appeal) entered the Park-It Market located at 621 Kishwaukee in Rockford, Illinois. He approached the counter, produced a gun, then demanded money from the store's owner, John Rudolph. He also demanded the wallets of several customers who were present in the store at the time. In the meantime, Rudolph's sister-in-law had pressed an alarm button which was connected to the Rockford police department. Rudolph attempted to stall the gunman by sorting food stamps from the currency, but Benner ordered him to place the stamps and cash, together with the customers' wallets and purses, in a bag. Rudolph complied. Benner left through the front door and entered a car parked outside. Rudolph noticed that the car's engine was running, that Benner entered on the passenger side, and that the car drove off as soon as Benner was inside. Although he was able to observe another man seated on the driver's side of the front seat, he was unable to distinguish his features.

Alan Kjenner, a customer in the store at the time of the holdup, furnished a description of the getaway vehicle and the license plate numbers to police immediately following the robbery. He described the car as a gold four-door Oldsmobile *fn1 about nine years old. He thought the license plate was either AV4612 or AV4602, but he was not sure which.

At 11:25 p.m., Rockford police officers Paul Triolo and Stephen Pugh, who were on patrol in their marked squad car, received instructions from the police dispatcher to assist other units answering a holdup alarm at the Park-It Market. While they were en route to the store, they received another radio message that confirmed the market holdup. At that time, the dispatcher supplied them with a description of the vehicle and the license plate numbers.

At 11:30 p.m., the officers spotted a car matching the general description of the vehicle used in the robbery parked behind the Ten-Stopet tavern at 1312 7th Street in Rockford, approximately 10 blocks away from the scene. The car bore Illinois license plate numbers AV4612. Two men were inside the car at the time. The officers shined the squad car's spotlight on the vehicle; the driver turned around, then threw something out of the door window. The passenger, Mark Benner, exited the car and ran.

The driver, defendant Roger Gale Smith, was taken into custody and searched. At the time he was wearing a green army-type jacket. Inside the jacket, police found: currency and coins totaling $66.57; two wallets belonging to Park-It Market customers; and 48 food stamps, two of which were stamped on the reverse side, "Pay to the order of Park-It Market." Police also found a small cap pistol in a jacket pocket. A search conducted after his arrest also revealed that defendant was carrying a driver's license issued to his brother.

The car itself was then searched. In the front passenger seat of the vehicle, police found a .22-calibre pistol, with three live bullets and three spent bullets in the cylinder. A total of $87.47 in cash was found lying underneath the seat.

During the State's case-in-chief, two witnesses were permitted to testify about two guns and a car which were stolen in two separate burglaries which occurred a short time prior to the armed robbery. James Rowton, the owner of Jim and Don's Used Car Lot in Rockford, testified that he closed his business at 9 p.m. on February 3, 1977. After receiving a phone call about midnight, he returned to his business and discovered that the office door had been knocked down and a 1969 Chevrolet had been stolen. Similarly, Robert Latham, the son of the owner of B&J's Auto Sales, testified that upon arriving at work about 8 a.m. on February 4, 1977, he found the office door broken down and the office in disarray. An inventory of the office revealed that two guns, kept inside a desk drawer at the office, were missing. Both the car and the guns were later found in the possession of defendant Smith.

Defendant presented an alibi defense at trial. He testified that, at the time of the robbery, he was inside the Ten-Stopet tavern. At about 11:30 p.m., his cousin, Mark Benner, walked into the bar and asked defendant to hold some things for him. Defendant left the tavern and got into the front seat of a car which was parked in back. Benner then gave him some cash, food stamps, the wallets, and a pistol, which he placed inside his field jacket. Immediately thereafter, the police arrived and arrested him. Defendant's alibi was corroborated at trial by defense witness Helen Hoff, the sister of defendant's girlfriend. However, she was impeached by prior statements in which she had expressed doubt whether she had seen him in the tavern the night of the offense.

Defendant's first argument is that he was denied a fair trial when the prosecution was allowed to prove that the car and guns used in the armed robbery were taken in burglaries and were not in possession of the owners at the time of the offense. In denying defendant's motion in limine prior to trial, the court ruled the evidence was not admissible under any exception to the general rule prohibiting the admission into evidence of crimes other than those charged in the indictment; *fn2 however, the court further ruled it was admissible for the purposes of "anticipatory rebuttal." Defendant contends on this appeal that the court below was correct in ruling that the evidence was not admissible under any exception to the "other crimes" evidence rule, but erred in admitting it as anticipatory rebuttal proof. The State contends that it was admissible for the purpose of showing that the owners of the property were not involved in the robbery.

We are of the opinion that the trial court ruled correctly in denying the motion in limine. Although not relied upon by the trial court or cited to us by the parties, we believe that People v. Walls (1965), 33 Ill.2d 394, 211 N.E.2d 699, and People v. Peto (1967), 38 Ill.2d 45, 230 N.E.2d 236, are controlling under the circumstances present in the case at bar.

In Walls, the accused was charged and convicted of rape. In the course of trial, the prosecution was permitted to prove that a car used to transport the rape victim subsequent to the crime was stolen. The supreme court, in affirming the conviction, held that the trial court did not err in admitting this evidence. First, the court observed that such evidence "* * * could be considered part of the `continuing narrative which concern[s] the circumstances attending the entire transaction'." (Walls, 33 Ill.2d 394, 397, 211 N.E.2d 699, 701.) Secondly, the court noted that "[o]wnership of the car and who it was driven by on the night of the alleged rape were * * * relevant issues in the case." (Walls, 33 Ill.2d 394, 398, 211 N.E.2d 699, 701.) Thus, proof that the car was not in the possession or control of its rightful owner was held to be admissible by the court as probative of the identity of the offenders.

A similar situation was presented to the court in the Peto case, decided two years after Walls. In Peto, the defendants were charged with burglary. During the trial, the prosecution proved that a car used by defendants in the commission of the crime had been stolen approximately two months before. On appeal from their convictions, defendants argued that it was error to admit this evidence, as it implicated them in crimes for which they were not on trial. The supreme court upheld the trial court's ruling and affirmed the convictions. The court first noted that the possession of the car and the items found therein on the night of the offense were relevant factual issues in the case; thus, it was proper for the State "* * * to introduce testimony that the car was not ...

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