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People v. Jones





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. SKLODOWSKI, Judge, presiding. MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant was found guilty of armed robbery and sentenced to a prison term of six to 10 years. On appeal, he contends: (1) he was not proven guilty beyond a reasonable doubt; (2) he was denied due process and the right to confront witnesses against him when the trial court permitted the prosecutor to insinuate facts unsupported by the evidence; (3) the trial court erred in allowing the prosecution to introduce certain inadmissible "hearsay" into evidence; and (4) the trial court made certain errors during the sentencing hearing which require a new hearing. We affirm.


Defendant contends that the State failed to sustain its burden of proving him guilty beyond a reasonable doubt because the testimony of the complainant was contrary to human experience and conflicted with the testimony of two police officers. The complainant, Vernell Harris, testified that at approximately 11:15 p.m. on October 24, 1975, he was getting ready to ring a doorbell in the lighted hallway of a building at 4315 South King Drive when the front door opened and a man entered the hallway, stuck a .38-caliber short barrel gun into his face, and announced a "stickup." Complainant stated that he could see the face of the man, whom he identified as defendant, because the hallway was lighted and because the man was standing two or three feet away from him for about one or two minutes. He gave defendant his wallet which contained between $103 and $150 and, after a while, defendant turned and walked out of the building.

Complainant testified that he waited for a few seconds in the hallway and watched defendant get into the passenger side of a parked car which was already occupied by a woman, Cheryl Newsome. He stated that he did not see defendant drop or throw anything while walking to the car. After Newsome started the car, complainant came out of the hallway and got into his own car. By the time he started his car, defendant's car was stopped at a traffic light at 43rd Street and King Drive. Complainant pulled behind defendant's car at the light and followed the car as it turned eastward down 43rd Street. Defendant's car did not proceed at a very fast pace down 43rd Street and complainant was able to keep about "another car length" behind the car. While following, he did not notice either person in defendant's car looking back at him. He said that he never lost sight of defendant's car until it pulled into a gas station at 43rd Street and Cottage Grove, which was about six blocks east of King Drive, and that he never saw anything being thrown out the window until the car reached the station.

Complainant testified that he saw two uniformed police officers in a patrol wagon at 43rd and Cottage Grove and told them that he had been robbed by a man who was parked in a car at the gas station on that corner. He also related this information to two plainclothes officers who had joined the patrol wagon and pointed out defendant's car to them. The officers then went to the gas station and the plainclothes officers proceeded to block the front of defendant's car with their car while the uniformed officers blocked the rear with their patrol wagon. Complainant also went to the station and got out of his car about 20 feet from defendant's car. He said that he saw Newsome throw a wallet out of the car but also stated that he did not notice her rolling down her window until later. He went to pick up the wallet, but one of the uniformed officers retrieved it first. In the meantime, defendant was struggling in the car with the plainclothes officers. They were attempting to take a gun from defendant. Complainant said the gun was the one used during the robbery. Eventually, the officers were able to handcuff defendant and seize the gun.

Complainant testified that his wallet was returned to him at the police station. However, the wallet did not contain his pay stub, identification card, social security card, or the money. All of these items, aside from the money, had been found earlier scattered in the back seat area of defendant's car and had been returned to him. The money was never recovered.

Officer Robert McKnabb testified that he was "working" a plainclothes tactical car near 43rd Street and Ellis, about two blocks from Cottage Grove, when complainant told him about the armed robbery and the location of defendant. He could not see the gas station from where he was located but complainant, who appeared to be calm all during the conversation, gave him a description of defendant's car.

When McKnabb arrived at the gas station, he approached the passenger side of defendant's car from the rear while the patrol wagon blocked the exit directly in front of defendant's car. After he identified himself to defendant as a police officer and ordered him out of the car, defendant reached over and put the car into gear. The car started to move forward, but McKnabb was able to keep pace and eventually was able to open the door and force defendant to drop his .38-caliber gun and to get out of the car. He said that force was necessary because defendant was struggling with him. McKnabb recovered the gun from inside the car and later that evening inventoried the gun. The inventory slip, which McKnabb identified as the one which he filled out and signed, was admitted into evidence over defense objections. When asked if he knew what happened to the gun, he stated that the gun had been destroyed. He also testified that personal identification cards were recovered from the back seat of defendant's car and a billfold was recovered from the ground, five or six feet from the driver's side of the car. He never recovered any money and said that he searched the trunk of defendant's car.

Both sides stipulated that if Officer Robert Swiderski, McKnabb's partner, were called to testify he would testify as he had at a preliminary hearing that complainant's wallet was found on the front seat of defendant's car somewhere between where Newsome and defendant had been sitting.

• 1 In reviewing the sufficiency of the evidence in this case, we must bear in mind that:

"* * * it is always the duty of this court to examine the evidence in a criminal case, and if it is so improbable or unsatisfactory as to raise a serious doubt of defendant's guilt the conviction will be reversed. [Citations.] A judgment of conviction can be sustained only on credible evidence which removes all reasonable doubt of the guilt of the defendant, and it is the insufficiency of the People's evidence which creates such doubt. If a conviction is to be sustained, it must rest on the strength of the People's case and not on the weakness of the defendant's case. [Citations.] The foregoing principle of law is a corollary of the presumption of innocence to which a defendant in a criminal case is entitled, and to the rule that the People have the burden of establishing the defendant's guilt beyond a reasonable doubt." (Emphasis added.) (People v. Coulson (1958), 13 Ill.2d 290, 296, 149 N.E.2d 96, 99.)

Guilt beyond a reasonable doubt may be based solely on the testimony of the complainant, if his testimony is positive and credible. (People v. Mays (1979), 74 Ill. App.3d 145, 392 N.E.2d 106.) A complaint's testimony may be considered positive and credible even if it conflicts with the testimony of other witnesses. (People v. Mayfield (1979), 72 Ill. App.3d 669, 390 N.E.2d 1315.) Although the question of credibility of a complainant is normally for the trier of fact, we will not hesitate to reverse the fact finder's determination if we find the complainant's testimony is contrary to the laws of nature or universal human experience. (People v. Dawson (1961), 22 Ill.2d 260, 174 N.E.2d 817.) Despite the fact that complainant's testimony conflicted with McKnabb's testimony and Swiderski's stipulated testimony in some minor respects, we find that complainant's testimony is both positive and credible in all material respects and overwhelmingly supports defendant's conviction.

The evidence in this case will not permit any question to be raised concerning complainant's ability to view defendant both during and after the crime. Complainant testified that during the commission of the crime he stood looking at defendant and his gun at a distance of two or three feet for one or two minutes in a lighted hallway. After the crime, he followed defendant to a gas station within blocks of the crime, and within minutes, was able to either point out defendant's car or give a description of the car to the police. When the police went to apprehend defendant, they struggled over a gun which complainant identified as the gun used in the armed robbery. After the police had subdued defendant, they recovered complainant's identification cards from the back seat area of defendant's car and complainant's wallet either just outside the driver's side of the car or on the front seat. Officer McKnabb, who was one of the arresting officers, corroborated much of this testimony.

We disagree with defendant's claim that the testimony of complainant was so "improbable and contrary to human experience as to be an insufficient basis to convict." Defendant argues that there were several improbabilities in complainant's testimony, but we will consider only those which have some merit. First, defendant argues that complainant's testimony that he made no effort to evade the police or to flee from complainant following the robbery was improbable and contrary to human experience. However, we do not find this so improbable in light of the fact that there was no testimony that defendant knew that (1) complainant had a car, (2) complainant was following him, or (3) it was reasonably possible for him to flee the police. Instead, we believe that defendant's actions were consistent with an attempt not to call attention to himself and a general concession that with police present at the gas station, he could not escape. Second, defendant argues that complainant's testimony as to the manner in which his property made its way into defendant's car is to be disbelieved because the money which he claimed was taken from him was never recovered. Although no money was ever recovered, we believe that the evidence offers a possible explanation for this failure to recover the money. Cheryl Newsome testified that after she had arrived in the gas station but before the police arrived, she left the car and went to a candy machine. During the time she was away, she could have disposed of the money. Moreover, even if we were to find that this does not afford an adequate explanation for the missing money, we would still not find complainant's testimony to be improbable and contrary to human experience because of the rather incriminating testimony that the other fruits of the crime, the identification cards, were found in the back seat area of defendant's car. Although we are not unaware of defendant's explanation that a woman named Red had dropped "something" in his car, after talking with complainant, we do not think that this explanation rings true, particularly in light of the fact that defendant never claimed that he attempted to find out exactly what had been dropped in the car. Third, defendant argues that complainant's testimony that Newsome threw the wallet out of the car is subject to suspicion, particularly because he also testified that she did not roll down her window until defendant had been removed ...

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