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People v. Agee

OPINION FILED MAY 20, 1980.

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

v.

ANDRE L. AGEE, DEFENDANT-APPELLANT.



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

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

Defendant, Andre L. Agee, was charged by information with the offense of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2). After a jury trial, defendant was convicted and sentenced to serve a term of four to seven years in the State penitentiary. Defendant appeals his conviction. We consider the following issues: (1) whether the trial court erred in limiting defense counsel's impeachment of the victim, when the proper foundation was not laid for that testimony; (2) whether the trial court erred in restricting defense counsel's cross-examination of a witness; (3) whether defendant was denied a fair trial when the jury was not instructed on the definition of "dangerous weapon" and (4) whether the prosecutor's comments during closing arguments exceeded the bounds of fair comment and thus deprived defendant of a fair trial.

For the reasons hereinafter set forth, we affirm defendant's conviction.

On June 23, 1977, Stanley Chesney (hereinafter referred to as the victim) was robbed by three youths in the elevator of the building located at 1165 North Milwaukee Avenue in Chicago, Illinois. On the following day Andre L. Agee (hereinafter referred to as defendant) was arrested and identified in a police lineup as one of the perpetrators of that crime. The following evidence was adduced at his trial:

The victim testified that on June 23, 1977, he was employed as a delivery man by Congress Pizza, and in accordance with that employment he was required to make a delivery of several pizzas to the building at 1165 North Milwaukee in Chicago, Illinois. In order to gain entry to the building, he called apartment 2411 (his first delivery) and was electronically admitted by use of the security "buzzer" system. Two boys, later identified as defendant and Renaldo Jackson rode the elevator with the victim, where they departed on the 15th floor. The victim continued to the 24th floor, made his delivery, returned to the elevator and proceeded to the sixth floor for his second delivery. While descending, the elevator stopped on the 15th floor where defendant, Jackson and a third youth (later identified as "Huron") entered the elevator. The victim was facing the other passengers during the ride down; as the elevator approached the sixth floor he turned toward the door to prepare to leave. At that point Jackson "tripped" the elevator so that it stopped between the seventh and sixth floors, and the door opened; the victim asked what was "going on" and defendant answered, "We don't want your pizza. We want your money." Defendant pushed the victim against the corner of the elevator, reached in his own belt and pulled out a hard, cold object which he placed at the victim's neck and announced that he had a gun. Although the victim did not actually see the weapon, he testified regarding his familiarity with firearms and stated that the object looked like a revolver. Defendant reached into the victim's back pocket and took a wallet containing two $20 bills. Jackson searched the victim's left pocket and found some keys which he did not take. Huron searched the victim's other pocket and took approximately $10 to $15 in change. The three offenders then fled the elevator and ran down the hall on the lower floor. The victim rode the elevator to the first floor and told the security guard, Lieutenant Howard, that he had been robbed by the boys who had gotten on the elevator with him. A woman standing in the lobby at that time stated that she had seen three boys on the 15th floor. Howard and the victim went to apartment 1502 and explained to the woman who answered the door that three boys had been seen running to her apartment. The men were denied admittance so they went to apartment 1501 where they were permitted to call the police. Upon the officers' arrival, the victim gave a description of the three offenders to the police and returned to the pizza parlor.

The following day the victim returned to the building to inquire whether his wallet had been returned. Lieutenant Howard said it had not been found but that he thought he recognized one of the offenders. He gave victim a piece of paper with the nickname "Scoop" on it and verbally suggested a general address in the 1000 block of Milwaukee as a possible lead. Victim took this information to the police and two officers were sent to investigate the matter. The victim later identified defendant at a lineup as the assailant with the gun. He also identified defendant from a photograph of the lineup and made an in-court identification.

Lieutenant Howard, the security guard on duty at 1165 North Milwaukee on June 23, 1977, testified that on the date in question he saw the victim enter the building and noticed two boys, one of whom was defendant, talk to victim in the lobby and then ride the elevator upstairs. Approximately 15 minutes later victim returned and told Howard that he had been robbed. A woman standing in the lobby at that time overheard their conversation and said that she had seen three boys get off the elevator on the 15th floor and enter apartment 1502. Howard and the victim went upstairs to see the occupant of that apartment but were refused admission. Howard then went to apartment 1501 and telephoned the police. At that time Howard knew defendant only by the nickname of "Scoop." When he saw victim on the following day, he gave him that name and an approximate address on a slip of paper.

Christopher Baggett lived with his mother, Christine Franklyn, at 1165 North Milwaukee Avenue in apartment 606. Baggett testified that on June 23, 1977, his mother asked him to go downstairs to check for a pizza delivery. When he reached the first floor, he discovered that the pizza had not arrived, so he went upstairs to see a friend who lived in apartment 711. This friend was not home, so he went to the elevator to return to his apartment on the sixth floor. As he entered the elevator he saw the pizza delivery man and three boys, one of whom was defendant. While the elevator was still on the seventh floor, defendant stopped the elevator. A second boy put one of his hands in his own pocket and robbed the pizza delivery man. The third boy went through the victim's pockets while defendant opened the door and told Baggett to leave the elevator. Baggett did as he was directed and ran down the hall to the stairway.

Defendant testified that on the date in question he and Jackson went to the building at 1165 North Milwaukee at approximately 7 p.m. to visit a friend, identified only as Huron, who lived in apartment 1502 in that building. When they arrived at the elevator, a pizza delivery man and two women got on and rode the elevator upstairs with them. They proceeded to Huron's apartment and spent a few minutes there before the three of them returned to the elevator. When it stopped on their floor, Christopher Baggett and the delivery man were already on the elevator. During the descent, Huron pulled a gun or "something" and announced a robbery. He then told Jackson to "jam" the elevator between floors seven and six, which he did. Defendant testified that Huron told the pizza man that "I want your money, not your pizza." Defendant, Jackson and Baggett, whom defendant had previously told to leave the elevator, got off and ran down the stairs. Defendant was arrested the following day.

Defendant further testified that he was not sure whether the object Huron held was a gun, but he was certain that it was placed at the back of the victim's neck. Defendant claimed that although Baggett testified that defendant "jammed" the elevator, it was, in fact, Jackson who had done so. Defendant stated that he was mistaken in his earlier testimony when he stated that Baggett was on the elevator when it arrived at the 15th floor. Baggett actually got on at the eighth or seventh floor. Defendant stated that he did not report the robbery to the security guard because they were not on good terms, nor did he report the robbery to the police because "when you do you just get a name in the neighborhood" and "if you tell on them they will get you."

Julio Garcia, a Chicago police officer, testified on behalf of the State that on June 23, 1977, he was working with police officer Casas when they received a call to investigate a robbery at 1165 North Milwaukee. His partner took the initial report, and a written record was made as a result of the complaint. Garcia did not talk to the complainant and did not write the police report.

Kenneth Sullivan, a Chicago police officer, testified on the State's behalf that he was one of the officers who arrested defendant on June 24, 1977. He had been given a slip of paper by victim which contained the name "Scoop," and he also received a general description of the suspect from the victim. He proceeded to the general neighborhood of the address given by victim and began to question various youths concerning the whereabouts of "Scoop." After determining that someone with that nickname lived at 1027 North Milwaukee, he went to that address and asked for "Scoop." When defendant came to the door, Sullivan determined that he matched the general description in the original police report, whereupon defendant was arrested and given Miranda warnings.

The defense attempted to call Officer Casas, the Chicago police officer who was Officer Sullivan's partner on the night in question and who completed the police report in response to the robbery investigation. Defense counsel indicated that the testimony of Officer Casas would be elicited in an attempt to impeach the victim's testimony concerning the descriptions given to the officer on the night of the robbery and contained in the police report. Counsel maintained that these descriptions differed from the descriptions given by the victim at trial and therefore were prior inconsistent statements. The State objected to any testimony which Officer Casas might give on the ground that the proper foundation for this testimony had not been laid by defense counsel when the victim was testifying. The court sustained this objection and refused to allow defense counsel to recall the victim to lay the proper foundation. In ruling on the objection, the court noted (1) that Officer Casas would testify that the descriptions contained in the police report were given to him by the victim and (2) that these descriptions indicated that, contrary to the victim's testimony at trial, someone other than defendant was holding the gun.

Defendant was found guilty of armed robbery and sentenced to serve four to seven years in the State penitentiary. Defendant filed a motion for a new trial, which was denied, and he now appeals.

Defendant initially contends that the trial court erred in excluding alleged impeachment testimony merely because the foundational requirement for introduction of that evidence was lacking. Defendant maintains that the court's adherence to strict evidentiary rules effectively denied him (1) the right to confront the victim with a prior inconsistent statement or (2) if the ruling was correct, then the court erred in denying him the right to cure any defect resulting therefrom by recalling the victim for further cross-examination. The State asserts that defendant's rights were not abridged by the court's ruling because defense counsel had previously cross-examined the victim and failed to lay a proper foundation for the impeaching ...


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