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People v. Smith

OPINION FILED MARCH 9, 1984.

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

v.

DAVID SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Peoria County; the Hon. Richard E. Eagleton, Judge, presiding.

PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

The defendant, David Smith, was charged with the offenses of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). Following a trial by jury, the defendant was found guilty as charged. The circuit court of Peoria County sentenced the defendant to a 12-year term of imprisonment in the Department of Corrections for the offense of armed robbery, dismissing the armed violence charge. In addition, the court fined the defendant and ordered him to make restitution.

On the morning of July 20, 1982, Ricky Smith, the defendant's uncle, entered the Turf Club, a tavern in Peoria, Illinois, and remained on the premises for about 90 minutes. During that time period, the owner of the club arrived. He counted the receipts in the cash register, removing money from the register and placing part in a box near the register and the remainder in a cigarbox underneath the bar, and prepared a bank deposit, all within the view of Ricky Smith. While the owner was present, Smith made one telephone call and received one telephone call. The owner left the tavern prior to Smith's departure.

Approximately one hour after Ricky Smith left the club, a man entered the premises through the back door and said, "This is a stick up." The man was wearing a nylon stocking drawn over his face and was carrying a dark, small-caliber, automatic gun.

The man then ordered the bartender and the customers present to go to the back of the club and enter the restrooms. However, the bartender and the customers ran out the back door and telephoned the police from a nearby location. Thereafter, upon his return to the club, the owner noticed that the cigarbox containing approximately $150 in cash was missing from the bar.

Immediately following the robbery, Elmer Mohn, whose residence is located near the Turf Club, observed a man running down the street in front of his home carrying a cigarbox and bank deposit pouch. The man he saw was wearing a dark jersey with the number 72 printed on the back.

Two days later, Mohn identified the defendant in a police lineup as the person who looked like the man he had seen running with the cigarbox and deposit pouch the day of the robbery. Mohn later made an in-court identification of the defendant.

The police, in their investigation of the scene of the crime, found a notebook underneath the passenger seat of an automobile parked in the lot located to the rear of the Turf Club. The notebook contained a drawing which resembled a diagram of the Turf Club bar. Fingerprints found on the diagram did not match those of the defendant. The automobile was later identified as belonging to the defendant's fiancee, Debra Burton, now his wife.

The police also found a nylon stocking in the area near the front door of the club. A report from the State Crime Lab in Morton, Illinois, indicated that a single caucasian hair was found clinging to the stocking and that a hair sample taken from the defendant was dissimilar to the hair found on the nylon stocking.

On August 10, 1982, the defendant was charged with armed robbery and armed violence in connection with the events occurring at the Turf Club on July 20, 1982. In addition to the previously related facts, testimony was heard at trial relative to the defendant's whereabouts on that date, certain statements made by the defendant and his prior criminal activities.

Penny Grimm, a professional psychic and western wear retailer, testified on behalf of the prosecution. She stated that she knew both the defendant and his wife, Debra Burton, and that both were living in her home at the time of the armed robbery. She also indicated a familiarity with a certain football jersey, dark in color, with the number 72 or 73 printed on the back, owned by the defendant.

Grimm further stated that during the afternoon on the day of the robbery, Burton telephoned Grimm at her place of business and, as a result of the call, Grimm returned to her home where Burton, the defendant and his mother, Barbara Long, were gathered in the dining room. A conversation then ensued among the people present. During this conversation the defendant was pacing up and down the hallway leading into the dining room.

Grimm asked the defendant if he had called the police. The defendant responded that he could not telephone the police. Grimm then asked if he had called his attorney. The defendant stated that he had telephoned his attorney, who had advised him not to talk to anyone until later.

Grimm also related two statements, one made by the defendant's mother and the other made by his wife, which caused the defendant to stomp off down the hallway. The defendant's mother stated that he could not pass a lineup and the defendant's wife responded in the affirmative when asked by ...


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