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People v. Calloway

OPINION FILED DECEMBER 17, 1979.

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

v.

WILLIAM CALLOWAY, DEFENDANT-APPELLANT.



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

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

After a jury trial, William J. Calloway (defendant) was acquitted of attempt murder and found guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2). He was sentenced to 15 to 30 years. Defendant appeals.

In this court defendant contends his constitutional right to present a defense was violated when a defense witness was not allowed to try on clothes to show that they fit him and defendant's right to a fair trial was violated by improper closing argument by the State.

Officer George Kozel testified that on January 31, 1975, about 9:30 a.m., he and Officer Veraviec were driving a squad car north on Pulaski Road in Chicago. They noticed a man on 15th Street, 90 feet to the west of their car. This man was walking toward the car. The man saw the car and walked in the opposite direction. The man kept looking back at the car. Kozel turned the car west on 14th Street and back down an alley to 15th Street. They saw the man walking to a vacant lot. Kozel stopped and went over to the man. This man was identified as the defendant.

Kozel inquired from defendant why he had changed his direction so many times and had walked in the middle of the street. Defendant answered he was a garbage man who had been driving a truck. Defendant then pointed to where he said his truck was located. Kozel saw no truck. Defendant began to back away. Kozel made a pat-down search and found an empty black holster on the left side of defendant's waistband. Defendant told Kozel his gun was in a garbage can to which he pointed. Veraviec went toward the can. Kozel continued his search. Defendant said, "I have it, I will show it to you." Defendant jumped back and drew a gun from the back part of his body. Defendant held the gun to Kozel's head and said he would kill him. At defendant's order, Kozel handed his gun to the defendant. Defendant demanded Kozel to direct Veraviec to drop his gun. The officers obeyed. Veraviec began to use his radio and defendant threatened to kill him.

Defendant ordered Veraviec to run down the alley and Kozel to back up. Defendant walked away from the officers. When defendant was about 40 feet away, Kozel pulled out a second gun, yelled, "Hold it" and fired several times. Defendant fired once or twice at Kozel. All shots missed. The defendant ran off between parked cars.

The officers summoned help by radio and began searching the area. Defendant was described by them as a male Negro, about 30, wearing a long blue trench coat, blue work pants, dark stocking cap, a mustache, goatee and dark sideburns. Kozel testified defendant was wearing at least two pairs of pants.

After about 15 minutes of searching, Kozel and Veraviec were summoned to 1455 South Harding Avenue. Another officer showed them a bundle of clothing found in a front hall. There was a pair of blue work pants, a sweater and a belt. In Kozel's opinion these clothes looked like the clothes defendant was wearing. Kozel and Veraviec then continued their search. They were summoned back to 1455 South Harding at about 10:30 a.m. Kozel testified he found in the apartment several police officers, also a black man and woman and a white man in painter's clothes. Kozel found defendant in a rear room. Part of defendant's sideburns had been removed by shaving. Defendant was wearing a red shirt (too small to be buttoned), blue pants that were too small and no shoes.

Veraviec corroborated the testimony of Kozel. He identified the trousers worn by defendant in the apartment as a pair of jeans with the zipper open. Veraviec arrested defendant and gave him Miranda warnings.

Officer Markham answered the initial radio call. He searched the area of 15th Street and Pulaski for the defendant. At 1455 South Harding he saw a glass window had been broken out of the front door. Inside the door, in the front hall, he found a bundle of dark clothes consisting of blue work pants, a sweater and a belt. Kozel told him these clothes belonged to the defendant.

Officer Johnson responded to the radio call and went to 1455 South Harding. He knocked on the door about 9:45 a.m. A black woman admitted him. The officer saw the defendant sitting on a sofa, wearing dark blue clothing, holding a little girl. The officer left the building and returned about 30 minutes later. He responded to the call that a bundle of clothing had been found. Johnson identified this clothing as having been worn by defendant when Johnson first saw him. On this second visit, Johnson saw defendant there but defendant was wearing a red shirt, blue jeans that were too small and one slipper. Some of defendant's facial hair had been cut off. Johnson asked defendant for identification. Defendant responded he had none. Officer McNicholas testified he found a pair of tan work shoes in the bedroom of 1455 South Harding apartment.

Officer Diaz testified he responded to a radio call and participated in the search for the offender. On the back porch of a nearby building at 1458 South Harding, he found a long blue coat. It was wrapped around a brown and white scarf, a gun with a black holster, a wallet containing defendant's identification, about $147 and a man's watch.

Officer Clark testified that pursuant to a call he checked a trash barrel at 15th and Pulaski at about 9:30 a.m. that day. He found a .357 Colt magnum pistol. It was stipulated that this was Officer Kozel's gun. The officers testified that the .38-caliber revolver found within the long blue coat on the back porch at 1458 South Harding was the gun held on Officer Kozel. This gun contained six bullets, one expended. Kozel and Veraviec testified that the coat found around these items looked like that worn by the defendant when they first saw him. Veraviec testified the black holster found inside the coat had been worn by defendant. It was stipulated the two guns were dusted for fingerprints but none were found.

The defense called Phillip Rachel, a plumber. He testified he was working at 1455 South Harding with his assistant Joe Johnson. Rachel stated he went out to get his tools. When he returned he saw defendant sitting on a couch, dressed in a suit. He did not remember the color of the suit. He identified a green leisure suit shown to him as being like the suit defendant wore. Rachel left after 10 o'clock. Defendant was there when he left. Ann Ivester, a friend of Rachel's, brought him his lunch at about 9:30 or 10 a.m. that morning. She saw defendant ...


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