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People v. Ware

OPINION FILED MARCH 14, 1980.

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

v.

ALBERT WARE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROGER J. KILEY, JR., Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant and Anthony Carr were indicted for the murders and armed robberies of Lloyd Smith and Gene Goodwin. (Ill. Rev. Stat. 1973, ch. 38, pars. 9-1 and 18-2.) Carr pleaded guilty to the charges before defendant's trial. Defendant was tried in a bench trial and was found guilty of two counts of murder but not guilty of armed robbery. He was sentenced to a term of 30 to 60 years. On appeal, he contends: (1) he was not proved guilty beyond a reasonable doubt; (2) certain fingerprint evidence was improperly admitted; and (3) certain evidence of Carr's guilt was erroneously admitted against defendant. Because we find that defendant's guilt was not proved beyond a reasonable doubt and reverse his convictions, it is unnecessary to address his other contentions. The following pertinent evidence was adduced at trial.

Chicago police officer Pevitts testified that on November 26, 1975, he responded to a radio call, proceeded to a certain address, and was met there by Dorothy Smith. He proceeded to the second floor of the building and found Lloyd Smith dead in one bedroom and Eugene Goodwin dead in another bedroom. Both bodies were already stiff. The two bedrooms were in a state of disarray and the phone lines had been cut.

Dorothy Smith, Lloyd Smith's sister-in-law, testified. She lived on the first floor below the apartment of the two victims. On November 26, 1975, she and her husband woke up at about 5:15 a.m. At about 5:30 a.m. she went to the back door to look for her dog. She did not find the dog nor did she see anyone outside. At about 6 a.m. she walked her husband to the front door as he left. She noticed that the door to the second-floor apartment was open so she closed it. The door locked automatically. From her apartment she could hear the television upstairs playing loudly. She telephoned upstairs but no one answered. At 7 a.m. she left for half an hour to get a paper. While she was out she saw Arnold Brown and inquired whether he had seen Lloyd Smith board a bus for work, but Brown had not. She went home and called upstairs and again got no answer. She called Lloyd's employer and was informed that he was not at work. She and her granddaughter then broke the lock on the door to the second floor and went upstairs. After finding Smith she called the police.

When the police arrived, she went back upstairs with them. The police found Goodwin's body in another bedroom. The back door to the apartment was locked that morning. She saw a red jacket on the sofa in the front room and a hat, neither of which she had seen before. There were also a wine bottle on the kitchen sink and gin bottles on the side. When the police left they put a seal on the door, which remained until Mrs. Goodwin came to get some of her husband's belongings. Mrs. Goodwin moved the red jacket from the sofa to the kitchen. Police removed the jacket on January 28, 1976.

She testified that she last saw Lloyd Smith on November 25 at about 5:30 p.m. in her apartment carrying a half-pint bottle of liquor. She last saw Goodwin at about 10:30 a.m. standing at the top of the stairs. She also saw Arnold Brown at about 3:30 or 4 p.m., standing on her front porch. He had just left the upstairs apartment. She did not see or hear anyone enter or leave the building between 10:30 a.m. and 5 p.m., when Lloyd Smith came to her apartment. When he left he went upstairs and she did not hear or see anyone enter or leave the upstairs apartment that evening. She was in bed listening to the news at about 10 p.m. Her bedroom was directly below Lloyd Smith's. Sometime between 10:10 and 10:20 p.m. she heard a bumping noise upstairs, like someone was staggering or bumping against a wall. She heard nothing else and went to sleep before 10:30 p.m.

Claude Smith, Sr., Dorothy's husband and Lloyd's brother, testified. On November 26, 1975, he fell asleep about 6:30 p.m. but was awakened by the 10 p.m. news. At about 10:30 p.m. he heard a bumping sound upstairs and then a groan. About 10 or 15 minutes later he heard someone coming down the stairs. He heard no one else use the stairs to the second floor that night.

Claude Smith, Jr., testified that he arrived home at about 10 p.m. on November 25, 1975. He noticed that the front door to the second floor apartment was closed at that time. He went to his bedroom which was directly below Goodwin's room. After 10 or 15 minutes he heard bumping coming from the kitchen upstairs near his uncle's room. It sounded as if someone were dropping something. He left the apartment at about 10:20 to look for his dog. On his way out of the building he did not notice whether the door to the second floor was opened or closed. He spoke to a neighbor on the corner for about 15 minutes. He saw one other man but saw no one coming from his home. When he went back into his building he noticed that the door to the upstairs apartment was open, but he left it open. As he passed his father's room he told him that the door was open. He did not hear anyone use the stairs to the second floor. He was shown a jacket, marked as the State's exhibit No. 17A, which he had never seen before.

Arnold Brown, a neighbor and friend of the two victims, testified. On November 25, 1975, he was at their apartment around 7 or 8 a.m. At about 9 or 10 a.m. he went to a liquor store to buy some gin and beer. He returned to the apartment and drank with Goodwin. While he was there Goodwin received a phone call and the apartment was in order. He left the apartment between 1 and 2 p.m.

At trial, he identified a pint bottle of gin which looked like the one he bought on the day in question. He was shown some half-pint bottles which he said were not at the apartment when he was there. He was also shown two glasses which he stated he did not use that day. He also did not see State's exhibit No. 17A in the apartment or did he see either victim ever wear it.

On cross-examination Brown admitted that he had been convicted of burglary, had been a narcotics addict for six years, and was a lover of both victims.

Andrew Henderson testified that in December 1975 he bought a black leather coat from Anthony Carr and that Ernie Kendrix bought a short brown leather jacket from Carr. He was later contacted by police and he turned the coat over to them. At trial, he identified State's exhibit No. 19 as the coat he had purchased. He stated that he had selected a photograph of Carr as the man who sold him the jacket and had shown it to the police.

Chicago police investigator Chatman testified that he dusted the victims' apartment for fingerprints. Included among the items taken from the apartment were a palm print found on a door frame, a clear glass found on the front room couch, a plastic glass found on a cocktail table, a pint gin bottle, a blue plate and several beer cans.

Chicago police officer Olejniczak, a fingerprint technician, testified. He compared a negative of a latent impression found on a glass with a copy of an inked impression of defendant's prints. In his opinion the latent print corresponded with the left forefinger of defendant's impression. A comparison of defendant's inked impression and the copy of the impression revealed that they were of the same person. On ...


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