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People v. Grayer





APPEAL from the Circuit Court of Cook County; the Hon. FRANK B. MACHALA, Judge, presiding. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendants Daniel Grayer, Leonard Kemp and Eric Harris were found guilty of armed robbery and sentenced to six years imprisonment.

Defendants Grayer and Harris appeal, contending that they were denied a fair trial by the State's improper and highly prejudicial cross-examination of a defense witness. Defendant Kemp appeals, contending that (1) he was denied effective assistance of counsel and (2) he was not proven guilty beyond a reasonable doubt.

On February 22, 1979, Treena Moore, Cynthia Harris, Debra Harris and Debra's fiance, Eugene Cannon, lived in an apartment building at 225 East 50th Street in Chicago. At approximately 8 p.m. on February 22, 1979, Treena Moore, Cynthia Harris and Debra Harris left their apartment building to go to a Burger King located at 48th and State Streets. After purchasing food, the three girls walked south on Wabash Avenue past DuSable High School at 49th and Wabash. Six boys were sitting in front of the school. The girls then walked east on 49th Street toward Michigan Avenue when three boys approached them from the rear. The girls stopped to let the boys pass when one said, "No mama we don't want to get past we want what you got." One of the boys asked Debra for money. When Debra said she did not have any, one of the boys pulled out a gun and pointed it at her head. Cynthia was then searched by one of the boys, who took her keys. She was told she had to give him money to get her keys back. At the same time one of the boys searched Debra and took some money from her pocket. One of the boys then ran past and snatched the bag of food Debra was holding. As the three boys left, the boy with Cynthia's keys threw them to the ground and another boy turned and fired two shots at the girls. The girls then ran to a police car at 49th and Indiana. The officer in that car called another vehicle. Officer Willie Smith and his partner arrived, spoke to the girls about the incident and then drove them to their home at 225 East 50th Street. Officer Smith testified that he spoke with the girls for approximately 10 minutes after the incident and none of the girls gave a description of the offenders. However, the girls told him they could identify their assailants.

At trial, Treena Moore identified defendant Harris as the one who searched Cynthia's pockets and took her keys. Defendant Grayer asked Treena if she had any money.

Cynthia Harris identified defendant Grayer as the one who first said that they wanted what the girls had. She also identified defendant Harris as the boy who searched her and took her keys. Cynthia identified a photograph as accurately depicting the lineup she viewed on February 22, 1979. That evening she identified No. 4 as searching her, No. 5 as the boy with the gun who searched Debra and No. 6 as the other boy who robbed them.

At trial, Debra identified Kemp as the one who said they wanted what the girls had. Debra testified that defendant Grayer pulled out a gun and defendant Harris searched Cynthia. She also stated that defendant Kemp was the one who searched her and ran past her and snatched her bag of food.

After returning home, Debra Harris and Eugene Cannon went back to Burger King to get Cannon's lunch. Cannon carried a pipe that he found in the alley. Cannon did not have a gun. On the way, Debra saw the three defendants and another boy. Debra testified that defendant Harris was on a snowbank, making rhymes about how he had robbed her. After telling Cannon that the three others were the robbers, Debra and Eugene went home, the three defendants ran away and the fourth boy stayed there alone.

That evening Debra viewed a lineup and identified Nos. 4, 5 and 6 as the boys who had robbed her. She identified No. 4 as the one who searched Cynthia, No. 5 as the one who searched Debra and snatched her bag and No. 6 as the one who held the gun and took money from Debra's pocket. Debra Harris further testified that one week before trial, when she was outside the courtroom with Eugene Cannon and Cynthia Harris, she saw the three defendants and that defendant Kemp told her that "if we didn't press charges he would give us the money because he didn't do it."

Ernest Holmes testified that he was defendant Grayer's cousin and had known defendants Kemp and Harris for years. Holmes testified that on the night of February 22, 1979, he had seen defendant Kemp and defendant Grayer watching television at Mr. Graham's apartment at approximately 8:45 p.m. Mr. Graham lived at 4844 South State, which is one-half block west of DuSable High School and one-half block from 49th and Wabash. They left Mr. Graham's apartment to buy beer. Holmes, Kemp and Grayer walked to 47th and State with four other boys. After they got the beer, the three got on a bus to go two blocks north because the bus was there and it was cold outside. They met defendant Harris on the bus. When they got off the bus at 49th and State, they were approached by a man and a woman. The man had a gun and shot twice at them. The man asked the woman, "Is that them, is that them?" and the woman replied, "No." Holmes began to run when he was shot at, but he fell. The man came over to him and hit him with the gun.

A short time later Holmes found a plain-clothes policeman and they rode in his car looking for the man with the gun. When they found him, he was with uniformed police officers. They all went to the police station. Holmes was placed in a lineup. Holmes was not identified in the lineup or charged with armed robbery. However, the three defendants were identified in the lineup. The clothes they wore in the lineup were the same clothes they wore that evening. On cross-examination, the State's Attorney inquired into the details of a prior offense committed by Holmes. This testimony is subsequently set forth.

Andrew Graham testified that defendants Grayer and Kemp came to his apartment about 8 p.m. on February 22, 1979. He was training them to build cabinets and connect speakers. Graham did not remember whether defendant Harris was present. About 8:30 p.m. defendants Grayer and Kemp went to the liquor store to buy beer. They were gone about 15 or 20 minutes when they came back with the beer. Defendants Grayer and Kemp left Graham's apartment at 9 p.m.

Eric Harris testified that on February 22, 1979, he worked overtime at Automatic Electric, where he had been employed for approximately two years. He got off work at 6 p.m. that day. Before going home, he stopped at the home of Andrea Watson, who lived near 69th and Lowe. He left Watson's home between 9:30 and 9:45 p.m. On his way home, he took the El and the bus. He got on the El at 69th and Wentworth and got off at 47th Street. He got on the bus there and saw defendant Grayer, defendant Kemp and Holmes on the bus. Defendant Harris identified himself in a photograph of the lineup he participated in on the evening of the incident as No. 4, defendant Kemp as No. 5 and defendant Grayer as No. 6. He stated that the clothes worn by defendants in the lineup were the clothes they wore that evening.

Defendant Grayer testified that he lives at 4844 South State. He stated that Mr. Graham was teaching him a trade in electronics. Grayer testified that defendant Kemp came to Grayer's house at 7:30 p.m. on February 22, 1979. From there they went down to Graham's apartment. They arrived there at 7:40 p.m. and left at 8:45 p.m. to go to the liquor store. They walked to the liquor store located at 47th and State and took the bus for the return trip of two blocks. They met defendant Harris on the street at 9 or 9:10 p.m. He was drunk and staggering. They did not return from the store.

Defendant Kemp testified that he lives at 4947 South Federal, three buildings from 4844 South State. He stated that he and defendant Grayer got to Graham's at about 8 p.m. and left at 8:50 p.m. to ...

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