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People v. Thomas





APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.


Following a jury trial, defendant was convicted of the offenses of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1) and unlawful restraint (Ill. Rev. Stat. 1975, ch. 38, par. 10-3) and sentenced to four to 12 years in the penitentiary solely on the armed robbery conviction. On appeal, he contends that: (1) the trial court erred in denying his motion to suppress evidence discovered as a result of a warrantless search; (2) he was denied a fair trial when the trial court failed to ask prospective jurors questions during voir dire sufficient to allow him to intelligently exercise his peremptory challenges; (3) the prosecutor erroneously commented on his decision not to testify; (4) evidence that defendant was a narcotics user was improperly admitted at trial; and (5) the State failed to prove that he was guilty beyond a reasonable doubt.

On May 10, 1977, Virgil Winston was in his apartment at 2631 S. Indiana, Chicago. At about 3 that afternoon, his 15-year-old granddaughter, Monica Booth, stopped by. After he gave her money to purchase cigarettes, she left. Booth returned about 15 minutes later wearing a mask over her face. Winston recognized her because of her shoes, which he knew her mother had purchased. According to Winston, Booth was accompanied by defendant, who was five feet tall and wore a blue vest. Defendant placed a knife against Winston's neck, hit him on the shoulder with his fist and told him to "get down" off the couch and onto the floor. Then, defendant tied Winston's arms and legs with a telephone cord and put a handkerchief in his mouth. During this time, Winston, while kneeling on the floor, was looking up into defendant's face. Winston also saw his granddaughter rummage through his dresser drawer and remove his wallet containing $350. Later, he discovered that a watch, a chain, a gun, a diamond ring, and a ring with the initials "V.W." were also taken during the incident.

Shortly thereafter, Chicago Police Officers Markham and Coffey investigated the scene of the robbery. Markham testified that when he and his partner Coffey arrived, Winston was seated on the couch with his clothes ruffled, breathing heavily. The telephone was pulled out of the wall and the entire apartment was in disarray. Winston told the officers that one of the assailants was his granddaughter, Monica Booth, and the other was a male, approxiamtely 20 years old. He was unable to give a more elaborate description of the male offender because the occurrence "happened so fast."

Also investigating the robbery was Chicago Police Officer Foulkes. On May 12, 1977, two days after the incident, he interviewed Winston at the victim's apartment and later spoke to Gwendolyn Booth, Winston's daughter and the mother of Monica Booth. Following these conversations, Foulkes proceeded to room 12 of the Dorchester Hotel, located at 75th and Dorchester, and arrested Monica Booth and defendant. Pursuant to the arrest, Foulkes recovered a ring bearing the initials "V.W.," a stone-studded ring, a watch, a watch-type compact on a chain and a gun. On May 13, 1977, Foulkes conducted a lineup at the police station at which Winston identified defendant. Prior to the lineup, Winston saw Monica Booth and defendant together as they arrived at the police station. At that time, Gwendolyn Booth informed Winston that defendant was the one who "runs around" with his granddaughter.

Monica Booth, testifying for the defense, stated that on May 10, 1977, she was living in a room she had rented at the Dorchester Hotel. She admitted that she robbed her grandfather that afternoon and stated that defendant was then and currently remained her boyfriend. However, the man who assisted her in committing the crime that day was not defendant, but a man named John Stewart. According to her testimony, both she and Stewart wore hats over their faces during the robbery which only exposed their eyes. The two took a gun, two rings, a charm and $285 in cash from Winston. When they left the scene, she gave Stewart $100, and returned alone to the hotel room where she placed the remaining items taken from her grandfather. Later that afternoon, defendant visited her at the hotel, but she neither told him then nor at any time prior to their arrest about the incident.

Defendant initially contends that the trial court erred in denying his motion to suppress the physical evidence alleged to be illegally seized during the search of the hotel room.

At the hearing on the motion to suppress, Officer Foulkes testified that during his investigation of the robbery, he interviewed Winston and obtained a description of the male offender as being a young black between 19 and 23 years old, 5'8" tall, dark complected, with long hair and a slim build. Winston told Foulkes that his granddaughter was with this man. Foulkes and his partner then proceeded to the Dorchester Hotel on May 13, 1977, and discovered from the hotel clerk that Monica Booth and defendant were in room 12 of the hotel. They went to the room, announced their office and asked the occupants to open the door. Neither had an arrest or search warrant. After being allowed entry, Foulkes observed Booth, defendant and an unidentified male in the 10' x 12' room. On a dresser in the room was an initial ring which matched the description of the one Foulkes knew was taken in the robbery. Foulkes then arrested Booth and defendant. Along with the initial ring, Foulkes recovered a wristwatch, a pocketwatch, another ring, some money and a gun. Some of these objects were found inside a closed dresser drawer, but Foulkes could not recall the location of each particular item. At the conclusion of this hearing, the trial court denied defendant's motion to suppress the evidence, ruling that the search was proper.

It is defendant's assertion that the search, which was incident to a lawful arrest, was an unreasonable one because it exceeded the area of the arrestee's "immediate control." Chimel v. California (1969), 395 U.S. 752, 763, 23 L.Ed.2d 685, 694, 89 S.Ct. 2034, 2040.

• 1 We note at the onset that defendant offered no testimony at the hearing that the hotel room was rented by him or that he had a possessory interest in the room or in the dresser where the items were found. In fact, testimony at trial showed that the room was rented exclusively by Monica Booth. A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his fourth amendment rights infringed. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421.) The capacity to claim the protection of the fourth amendment depends upon whether one has a legitimate expectation of privacy in the invaded place. (Rakas.) Since defendant has failed to show that he had any legitimate expectation of privacy in the searched premises, he has not met the threshold requirement of standing to challenge the legality of the search. Therefore, we need not decide whether the search was lawful. Moreover, the admission of the fruits of the search into evidence does not prejudice defendant regardless of the legality of the search, because the location of the items at the hotel was consistent with his theory of defense. Monica Booth testified that after she and Stewart robbed her grandfather, she placed the proceeds at the hotel room without defendant's knowledge. Certainly, the discovery of these items in the room only corroborates Booth's testimony and does not suggest that defendant aided her in the robbery or was ever aware of the existence of the property taken.

Defendant next contends that the trial court abused its discretion by failing to ask prospective jurors questions during jury selection which were sufficient to allow him to intelligently exercise his peremptory challenges.

Jury selection was conducted entirely by the trial court. Prior to voir dire, defendant's attorneys objected to this procedure and requested that they be allowed to speak personally to prospective jurors in order to determine whether defendant would receive a fair trial. This request was denied. Defendant's attorneys also submitted to the trial court a list of 44 questions containing several subquestions to be used in probing the juror's ability to be fair and impartial. The trial court allowed the questions to be filed, but refused to ask any of them to prospective jurors with the exception of basic foundation questions (i.e., name, age, residence, etc.). Throughout the entire jury selection proceedings, defense counsel made several objections to the type of questions that were posed by the trial court and requested at side-bars that other specific questions be asked particular jurors. The court refused each and every one of these requests. When defense counsel made motions challenging various jurors for cause following the trial court's refusal to ask suggested questions, they were denied. Defendants' attorneys were ultimately required to utilize peremptory challenges to exclude several of these prospective jurors.

Defendant cites the following passage of the court's examination of a prospective panel of jurors as illustrative of its failure to conduct an inquiry sufficient to allow him to intelligently exercise his peremptory challenges:

"THE COURT: Swear the panel to try the issues.

(The panel was duly sworn to try the issues.)

THE COURT: You may be at leisure.

You have been listening to me, you last four, for almost four hours and you had an hour at lunch.

THOMAS O'DONNELL, a prospective juror, having been first duly sworn to answer questions, was examined as follows:


Q. Thomas O'Donnell, 6555 West Addison Street, and you are a supervisor at Standard Brands.

I am not going to go through every question. Is there any reason that you can think of, after hearing these maybe a hundred questions or more, is there any reason you can think of on the things I asked everybody else so that you couldn't give both sides a fair trial after sitting there all of this time and knowing what we are trying to look for?

Is there any reason you think of that you cannot give both sides a fair trial?

A. No.

Q. Would you like to serve on this jury?

A. Yes.

VALERIA GRUSZKA, a prospective juror, having been first duly sworn to answer questions, was examined as follows:


Q. Valeria Gruszka, 4848 South Sawyer?

A. Right.

Q. A mail clerk for the American Can Company?

A. Yes.

Q. You have been here in the courtroom for an hour and a half this morning, close to four hours plus your lunch hour. Is there anything that I have asked about a victim of a crime, former jury service, any reason I have asked all these other people that you would want to add where you could show you couldn't be a fair juror to both sides?

A. No, there isn't.

Q. Would you like to sit on this jury?

A. Yes, I would.

The Court: I am doing this because you people have heard every question I have asked.

THOMAS O'DONNELL, a prospective juror, having been previously duly sworn to answer questions, was examined further as follows:

Juror O'Donnell: We are going through this list of questions and if I have anything that I should volunteer, I should volunteer?


Q. Yes.

A. I have a cousin with rank in the Chicago ...

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