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People v. Kelley

OPINION FILED MARCH 30, 1983.

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

v.

ANDRE KELLEY A/K/A ANDRE KELLY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, Andre Kelley, was found guilty of the murder and attempted armed robbery of Charles Lawson and was sentenced to a term of imprisonment of natural life. On appeal, he contends: that an improper remark of the trial judge deprived him of a fair trial; that testimony and evidence of other crimes were improperly admitted into evidence at his trial; that the jury instruction on evidence of other crimes was overly broad; and that his motion to suppress certain physical evidence and his statement should have been granted because the police lacked probable cause to stop the taxicab in which he was a passenger.

At trial, the oral statement that defendant made shortly after his arrest on June 4, 1980, to Assistant State's Attorney Elaine Geer was admitted into evidence. Geer testified that defendant stated: that he was riding in the back of Lawson's cab near 64th Street; that he told Lawson to turn into an alley; that he pulled his gun and said, "This is a stick-up"; that after they turned into the alley, he saw an automobile blinking its headlights; that he told Lawson, "Move"; that Lawson proceeded to the mouth of the alley, where defendant told him to make a left turn; that Lawson would not turn; that he then shot Lawson behind the ear; that he left the cab and went to his home, approximately one-half block away at 6522 South Hermitage Street; and that the gun the police found at the time of his arrest was the gun used in the shooting.

Defendant's confession was corroborated by George Branch. He testified that while driving his automobile at approximately 2:30 a.m. on June 3, 1980, he observed a cab in an alley near Hermitage and 64th Streets. He thought that this was unusual because he used to be a cabdriver and because he knew that a cab should not be in an alley. Branch sounded his horn, and when the cab drove down the alley in a southerly direction, Branch followed it, blinking his bright lights and honking his horn. When the cab stopped in the alley at 66th Street, Branch hesitated for approximately 30 seconds. He then drove past the cab and saw the cabdriver in the front seat, slumped over the steering wheel. The left rear door of the cab was open, but Branch did not see anyone else in the vicinity. Subsequently, he directed a police officer to the location of the cab. Chicago police officer Henry Jackson testified that at approximately 2:30 a.m. on June 3, 1980, he and his partner followed the driver of an automobile to a location on 66th Street between Hermitage and Wood Streets. He observed a cab facing southbound in the alley with the left rear door open. When he approached the cab, he saw that the driver was leaning over the steering wheel. The driver was moaning, and there was blood running down his collar. Testimony of Charles Lawson's mother established that he died on June 10, 1980. Dr. Robert Stein testified that on June 11, 1980, he performed an autopsy on the body of Charles Lawson, and that in his opinion, the cause of Lawson's death was a bullet wound to the head. There was an entrance bullet wound located on the back of the head which had the characteristics of a contact wound, and during an internal examination, a bullet was recovered.

Chicago police officer James Spratte testified that during the early morning hours of June 4, 1980, he and his partner were investigating a pattern in a series of robberies which had occurred within an eight or nine square block area, and that they were stopping all cabs they saw driving on side streets in that area to warn the drivers of the pattern and to look at the passengers to see if they fit a description. At approximately 3:30 a.m., they stopped a cab near 64th Street and spoke to the cabdriver, informing him of the robberies and shootings in the area. Spratte then looked in the rear of the cab and saw two passengers, one of whom was defendant. Defendant was ordered out of the cab and was arrested. Spratte then observed that the other passenger in the cab, a woman, had her hands in the pockets of her coat. The officers asked her to remove her hands from her pockets, and they observed the butt of a revolver. They seized the gun, asked her to exit the cab, and placed her under arrest. Spratte identified the gun as a Smith and Wesson .38-caliber, nickel-plated revolver. Donald Smith, a firearms examiner for the Chicago police department, testified that in his opinion the bullet recovered at the autopsy had been fired from the revolver seized at the time of defendant's arrest.

There was also evidence of similar offenses committed by defendant. Homer Wilcox testified: that he was a cabdriver; that at 4:30 a.m. on June 2, 1980, he picked up defendant near the corner of 63rd and Ashland Streets; that defendant said he wanted to go to 66th and Honore streets, about seven blocks away; that when they got to 66th and Paulina streets, defendant told Wilcox to stop the cab; that Wilcox did so, and when he looked in the rear of the cab, he saw that defendant had a gun; that defendant said, "Stickup," and with both hands pointed the gun at Wilcox' temple; that the gun had a chrome barrel and was similar to the revolver subsequently recovered by the police; that defendant told Wilcox to drive into a nearby alley; that defendant struck Wilcox on the top of his head with the gun; that in an attempt to escape, Wilcox stepped on the cab's accelerator and crashed into another car; that as Wilcox accelerated, defendant shot him through the nose; that when Wilcox exited the cab, defendant shot him in the arm; and that he ran and was subsequently taken to a hospital by police. Chicago police officer Andrew Brooks, an evidence technician, testified that at 5:20 a.m. on June 2, 1980, he and his partner examined the interior of the cab and found a fired bullet in the front seat. They also examined the cab for latent fingerprints and found four of them. Brooks lifted the fingerprints, one of which was lifted from the inside right rear door handle of the cab. Chicago police officer Phillip Montalbano, a latent fingerprint examiner, testified that in his opinion that latent fingerprint from the door handle matched a fingerprint on defendant's fingerprint card. Ernest Warner, a firearms examiner for the Chicago police department, testified that in his opinion the bullet recovered from Wilcox' cab had been fired from the gun recovered at the time of defendant's arrest.

John Watts, a cabdriver, testified: that at 6 a.m. on June 2, 1980, he was driving his cab; that at 63rd and Ashland streets, he picked up defendant, who said his destination was 65th and Laflin streets, a short distance away; that as they approached Laflin Street, defendant told Watts to turn it into the alley; that he turned around and saw that defendant was holding a pistol with both hands; that the pistol was pointed at the back of his head; that he turned into the alley and stopped; that he was robbed there; that he exited the cab and walked away as defendant ordered him to do; that when he was 10 to 20 yards away, the cab was driven away in the opposite direction; and that he walked to a police station where he informed officers of the robbery. Chicago police officer Robert White testified that at 6 a.m. on June 2, 1980, he received a radio message of an accident in an alley near 6434 South Hermitage Street, that he observed a vehicle in the alley that had struck a post, and that the accident occurred 1 1/2 blocks from 6522 South Hermitage Street, defendant's address. The vehicle he observed was Watts' cab.

I

Defendant first contends that an improper remark of the trial judge made to the prospective jurors prior to voir dire examination deprived him of a fair trial. The remark was:

"The defendant is charged by way of an indictment. The indictment charges that on or about June 3rd 1980, within the County of Cook, the defendant herein, namely Andre Kelley committed the offense of murder in that he intentionally, knowingly, shot and killed one, Charles Lawson, with a gun.

He is also charged at the same time, at the same place, he did commit the offense of attempt robbery in that he did attempt to take the property from the person and presence of one, Charles Lawson, while armed with a dangerous weapon, to-wit, a gun.

In other words, the defendant here is charged with the crime of attempt armed robbery and murder. And basically I believe the facts will bear out here that the defendant at the time the State charges and alleges that, that the defendant here attempted to rob a cab driver, and during the course of the robbery, that attempt armed robbery, shot and killed Charles Lawson." (Emphasis added.)

Immediately following this statement, the trial judge correctly commented that the defendant is presumed to be innocent and that the State has the burden to prove him guilty beyond a reasonable doubt. According to defendant, the trial judge's remark reduced his right to a jury trial to an empty, pro forma exercise, because the jury had been told prior to the presentation of any evidence that defendant had committed the offenses with which he was charged.

Initially, the State responds that defendant has waived consideration of this issue on appeal because he did not make an objection to the remark at trial and because he failed to raise this issue in his motion for a new trial. Although the failure to make a proper and timely objection or to specify objectionable matter in the motion for a new trial ordinarily prohibits review, our supreme court has held that a less rigid application of the waiver rule must prevail where misconduct of the trial judge is ...


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