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People v. Miller





APPEAL from the Circuit Court of Cook County; the Hon. LOUIS GARIPPO, Judge, presiding.


Rehearing denied August 14, 1981.

Defendants Orville Miller and Rudy Bell were found guilty of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) by a jury, and they each received a sentence of 100 to 200 years. They contend that their convictions should be reversed for the following reasons: (1) they were not proved guilty beyond a reasonable doubt; (2) the testimony of the State's chief witness that she told a priest about the incident several weeks before informing the police constituted reversible error; (3) it was error to admit into evidence shotgun shells seized during the arrest of defendant Bell's brother for a separate offense; (4) they were denied due process because the State concealed the surname of any eyewitness; and (5) the court erred in refusing to grant defendants' motions for a new trial based upon newly discovered evidence. We affirm.

During the early morning hours of April 2, 1977, the victim, Tyrone Smith, drove to the airport to meet his aunt. He was accompanied by his mother as well as his girlfriend, LaDonna Dixon, and Dixon's child. They arrived at the victim's house at 7948 S. Union in Chicago at approximately 2:30 a.m. While standing in front of his house, the victim shouted to the driver of an approaching automobile to turn on the car's headlights. At this point, some men exited the car and shot and killed the victim.

Audrianna Thomas testified that she and a friend named Robert Anderson were standing a few doors north of 7948 S. Union when the shooting occurred. She saw four people get out of a dark blue car when it pulled alongside the victim's car. She then saw guns go off and recognized the two defendants as two of the offenders. Thomas and Anderson left Union Street shortly after the shooting. Thomas did not inform the police that she was an eyewitness to the crime until almost a month later. Neither defendant testified, but both presented alibi witnesses. Several witnesses called by defendant Bell testified that he was attending a party in Milwaukee, Wisconsin, at the time of the occurrence. Defendant Miller presented a witness who testified that Miller was with her at her home at the time.

Defendants' first contention is that the State failed to prove them guilty beyond a reasonable doubt. They maintain that Thomas' testimony, which was essential to the State's case, was incredulous. Thomas testified that she and Robert Anderson went for a drive around midnight on the night of the incident. Anderson drove to Union Street around 2:30 a.m. Anderson told Thomas that he was going somewhere to gamble. Thomas followed him as he got out of the car, and she told him that she wanted to go home. When the victim pulled his car up in front of his house, Thomas looked to see who was there. The dome light in the car went on when the doors were opened, and the street was well-lit. Thomas recognized the victim and LaDonna Dixon. Thomas' attention was drawn to another car when she heard someone say, "Hey, man, turn your lights on." She thought the victim was the one who made the statement. The darkened car pulled alongside the victim's car, and four men exited. These men ran around the victim's car, and the witness saw guns go off. Two of these men were carrying long-barreled guns. The witness identified these two men as the defendants. She testified that she did not personally know them but that she had seen them around over the past few years.

• 1 Defendants contend that Thomas' testimony was not credible because she misidentified defendant Miller as defendant Bell at trial. In this regard, Thomas testified that she was not personally acquainted with defendants, but that she had seen them around. A friend had identified them to her as Rudy Bell and Bimbo (defendant Miller's nickname). Clearly, the critical fact is that Thomas knew defendants by sight, and not that she knew them by name. She never wavered from her identification of the two defendants as participants in the homicide. The jury, having observed the witness, could reasonably have believed the crucial parts of her testimony. See People v. Escobar (1979), 77 Ill. App.3d 169, 176, 395 N.E.2d 1028, 1033.

• 2 Defendants further argue that Thomas' testimony was not believable because she testified that defendants were carrying long-barreled guns, whereas a pathologist testified that he could not classify any of the victim's wounds as shotgun wounds. The pathologist's testimony, however, was that while most of the wounds were consistent with handguns, he was unable to classify those wounds where no pellets were recovered. Moreover, shotgun shells were found near the victim's body. Based on this evidence, the jury's acceptance of Thomas' testimony was not unreasonable.

• 3 Defendants also rely on the alibi testimony presented at trial, which they claim showed beyond a reasonable doubt that they could not have been involved in the shooting. Several witnesses testified that Bell was at a party in Milwaukee when the victim was slain. A woman testified that Miller was with her at the time. However, the jury is not obligated to believe exculpatory testimony presented by a defendant or his witnesses. The positive testimony of one credible witness is sufficient to sustain a conviction even though it is contradicted by other witnesses. (People v. Daniels (1979), 76 Ill. App.3d 646, 651, 395 N.E.2d 163, 167; see People v. Holdman (1979), 76 Ill. App.3d 518, 525, 395 N.E.2d 72, 78.) Thus, we conclude that defendants' argument on this point is without merit.

Defendants next contend that they are entitled to a new trial due to Thomas' testimony that she told a priest about the occurrence several weeks before she informed the police. Defendants argue that this testimony constituted improper use of a prior consistent statement. They further argue that the error was exacerbated by the fact that the person to whom Thomas spoke was a priest, since a jury might find a clergyman more credible than a layman.

• 4 Generally, a witness may not testify as to statements he made out of court for the purpose of corroborating his trial testimony relative to the same subject. However, even if we view Thomas' statement as a prior consistent statement which should not have been admitted, it was not prejudicial to defendants. Thomas did not testify as to the contents of the conversation with the priest other than her general statement that it concerned the shooting. She did not testify that she told the priest that defendants were participants in the crime. Therefore, since the testimony as to the prior statements was not directed to defendants' guilt or innocence, its admission was at most harmless error. (Cf. People v. Arbuckle (1979), 75 Ill. App.3d 826, 833, 393 N.E.2d 1296, 1301-02.) Defendants' contention that the error was exacerbated by the fact that it was a priest and not a layman to whom Thomas related her story is untenable. We agree with the State that the fact that the person to whom Thomas spoke was a priest is irrelevant.

• 5 Defendants also claim that they were severely prejudiced by Thomas' statement because this was a close case and it took the jury three days to reach a verdict. However, we do not agree with defendants that Thomas' statement to the priest could have affected the verdict. As for the length of the jury's deliberations, that fact cannot transform harmless error into prejudicial error. Defendants also contend that the State emphasized the statement made to the priest during closing argument. However, the only reference made to the conversation during the State's closing argument was a statement that the conversation occurred. Once defendants objected, the subject was not pursued. We conclude that defendants were not prejudiced by Thomas' testimony regarding her statement to a priest. Defendants' arguments in this regard are without merit.

Defendant Bell next contends that the trial court erred in admitting into evidence shotgun shells seized when Bell's brother was arrested more than two weeks before the incident involved here. According to defendant Bell, admission of this evidence denied him a fair trial because it was irrelevant and was used to show guilt by association based on his brother's conduct.

Prior to trial, defendant Bell presented a motion in limine to prevent introduction of these shells into evidence. An expert witness testified concerning comparisons made between a shotgun shell found in the vicinity of the victim's body and two shotgun shells seized pursuant to the arrest of Bell's brother on March 15, 1977. The expert testified that the shell found in front of the victim's house had an extractor mark comparable to an extractor mark on one of the shells seized when Bell's brother was arrested. He further testified that the shells had other markings on them which were dissimilar. The court ...

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