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People v. Myles

OPINION FILED MARCH 29, 1985.

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

v.

ELMORE MYLES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas A. Hett, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 24, 1985.

Following a jury trial, defendant was found guilty of the offense of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1), and sentenced to a term of 30 years' imprisonment. Defendant appeals from that verdict and sentence. We affirm.

The issues presented for review are (1) that error occurred with the sending of a photograph which was in evidence to the jury; (2) that the extent and nature of the State's "investigatory procedure" testimony and its use by the State in closing arguments was improper; (3) that other closing arguments by the State were improper; and (4) that the court erred at sentencing in its finding of premeditation.

The evidence and testimony disclosed that the victim, Al Young, resided with his girlfriend, Esther Johnson, in apartment No. 705 of a nine-story Chicago housing project located at 2430 South State Street.

Kenneth Lester testified that on March 5, 1982, at approximately 12:50 a.m., he arrived at the victim's apartment requesting the use of the victim's telephone. Lester, who resided at 101st and Carpenter Street in Chicago, originally came to the 2430 building to visit his girlfriend who lived down the hall from the victim. When he arrived at the building, he attempted to see his girlfriend; he had previously been living in the apartment with her. She would not open the apartment door to him. They argued through the closed door for awhile before the woman called the police, who escorted Lester down to the first floor of the building. Once the police left, Lester returned to the seventh floor to call his girlfriend from the victim's apartment; he did not reach her, as she would not answer his calls.

Shortly thereafter, Lester and the victim left the victim's apartment and proceeded to the ninth floor by way of the building's "back" stairwell; the door to the ninth floor was open. Upon their arrival on the ninth floor, the two men separated. The victim turned to his right and walked down the hallway; Lester turned left and walked around a corner to a gallery of windows.

From the gallery area where he waited, Lester was unable to see the victim; he was, however, able to hear the victim's footsteps as he proceeded down the hallway. Lester then heard five or six gunshots, all sounding as if they had come from the same gun. After hesitating for five seconds, Lester turned back towards the stairwell, which was located 10 to 15 feet from the gallery area. As he approached the hallway that the victim had walked down, Lester turned to his left and saw the victim lying on the floor; his feet faced Lester. He saw two men "near" the victim's body. He identified one of the men as the defendant, Elmore Myles. He testified that the defendant was standing in front of the second man so that he was unable to see him. Defendant, however, was only 10 feet away and in plain view. Lester was able to view the defendant for three seconds before he began to back away from the scene. He also observed these men for 10 seconds as he backed towards the stairwell; the defendant appeared shocked to see Lester.

During this time, he observed defendant holding a gun up next to the side of his head. He did not remember seeing smoke coming from the gun, nor did he see anyone else in the hallway. Lester then ran down the same stairwell that he and the victim had previously used to get to the ninth floor.

Later that morning, Lester went to police headquarters, where he was shown a group of five or six color photographs. He identified the defendant from one of the photographs as the man that he saw in the hallway holding a gun. Nine days later, he attended a lineup where he positively identified the defendant from among the group of men that the police had gathered.

During direct examination, Lester again identified this photograph as the same one that he identified on the day of the victim's death. He also identified a photograph of the lineup that he attended. While on the stand, he pointed out the defendant as the man that he saw in the ninth floor hallway on March 5, 1982.

On cross-examination, Lester testified that there was no doubt in his mind that defendant was the man that he saw. When asked by defense counsel whether, during the course of the investigation, he ever voiced his doubt that it was defendant that he saw, Lester replied that he told one of the detectives that he was unsure that it was defendant. On redirect, Lester testified that shortly after he voiced his doubt about defendant to the first detective, he spoke to another detective and told him that he was sure that he saw defendant; he stated that he was "scared" during the initial questioning.

Ollie Mae Clark testified that she lived in apartment No. 907 of the 2430 building. In the early morning hours of March 5, 1982, she was watching TV in the living room of her apartment; the oldest of her three children who were living with her was still out, and she believed that he had gone to the building's seventh floor. On direct examination, she indicated that she heard noises outside her door, but continued to watch TV. Hearing a gunshot, she immediately started towards the door of the apartment. By the time that she reached the door, she heard two more shots. Looking out the peephole in the door, unable to see anything, she pulled the chained door open the width of the chain. Still unable to see anything, she unchained the door and stuck her head out the door. She observed a man lying on the floor of the hallway. She also heard footsteps going down the stairwell near her apartment. As she walked closer to the victim, she saw a man bending over him; her son had still not returned home. She did not immediately recognize the victim, but recognized the man bending over the victim as a man whom she knew as "Maizey." She later learned that his real name was Alfred Myles, a brother of the defendant. She knew "Maizey's" brother (defendant) and did not see him in the hallway that morning.

On cross-examination, she testified that the door of her apartment was four feet from her TV; that four to five seconds elapsed from the time that she heard the shots and crossed the room; that the man she saw bending over the victim was holding a gun; that she ran to the apartment door immediately after the shots were fired. She stated that she remembered telling her story to Detective Murphy of the Chicago police department, but that she never told him that she saw the victim falling to the floor. On redirect, she testified that in order for her to get from her living room to the door of her apartment, she had to go down a hallway, and that it wasn't until she peeked out the peephole and cracked the door that she finally opened the door to look into the hallway.

Barbara Curtis, a sister of the defendant, testified that at 1 a.m. on March 5, 1982, she was in apartment No. 903 of the 2430 building playing cards with a group of people which included her two brothers, Elmore and Alfred. During the game, she noticed a gun on the top of the apartment's refrigerator; she had seen it before "from Elmore" (defendant). She stated that the victim came to the door of the apartment at 1:20 a.m.; her brothers and Curtis Smith went into the hall with the victim. Ms. Curtis and two other women followed them to the door, but stayed inside the apartment; they cracked the door trying to hear what was happening in the hallway. She testified that they heard gunshots in the hall and immediately looked out the door into the hallway. She saw her brothers and Smith all down in the position where the victim was later found (outside apartment No. 901). She became sick and returned to the apartment. She noticed the gun was no longer on top of the refrigerator; she did not see the actual shooting.

Detective Leo Wilcosz testified that he was working the 12:30 a.m. to 9 a.m. shift on March 5, 1982, with his partner, Detective Carey, when he received an assignment to investigate a shooting death on the ninth floor of the CHA building at 2430 South State Street. Arriving at the scene at approximately 2 a.m., he noticed a large group had gathered in the hallway; one-half of these people were police personnel. As he stepped off the elevator, he observed the victim lying face-up on the floor; the lighting conditions were "good artificial lights."

Following a discussion with the original reporting officer on the scene, Detectives Wilcosz and Carey began a survey of the residents of the ninth-floor apartments. Wilcosz testified that he went to apartment No. 903 and found three female adults and several children; he then went to Ollie Clark's apartment. Returning to apartment No. 903, he received five color snapshots from Barbara Curtis. He also received an additional snapshot from another of defendant's sisters. These snapshots were later shown to Kenneth Lester at the police station.

In the course of his direct testimony, Wilcosz identified one photograph from the group as a picture of defendant. He later testified that he took the same group of photographs to Ollie Clark's apartment, where she identified from a different photograph defendant's brother, Alfred Myles, as the man she saw bending over the victim.

After transporting Ms. Curtis and Vanessa Mobley (also present in apartment No. 903 the morning of March 5) to Area I headquarters, Wilcosz met with Kenneth Lester between 3 a.m. and 5 a.m. His partner was also present. He showed Lester the same packet of photographs that Barbara Curtis had given him. During direct examination, Wilcosz viewed the snapshot and identified it as the same photograph from which Lester had made his initial identification. Wilcosz and Carey turned the case over to Detectives David O'Callaghan and Silva Stenzi between 8 a.m. and 8:30 a.m. that same morning.

Detective O'Callaghan testified that he received the packet of photographs from Detectives Wilcosz and Carey when he came on shift at 8 a.m. on March 5, 1982. After interviewing Ollie Clark at the police station, he spoke to Kenneth Lester at 9:30 a.m. Lester identified the defendant from one of the photographs in the packet as the man that he saw bending over the victim that morning. O'Callaghan testified that Lester told him that he'd been nervous during a prior identification, and had related to the detectives that he met with earlier that morning that he was not sure (that it was defendant); he told O'Callaghan that he was now positive. The detective also spoke to Barbara Curtis and Vanessa Mobley. Warrants on defendant and his brother Alfred were issued at 2 p.m. O'Callaghan's shift ended before he could apprehend defendant.

Detective John Murphy took over the case at 4:30 p.m. on March 5, 1982; he received the arrest warrants on defendant and his brother from Detective O'Callaghan. He went to apartment No. 903 where defendant's girlfriend, Doris Paige, resided; she was not home. Murphy also went to a number of other places looking for defendant, but was unable to locate him. Alfred Myles, defendant's brother, was apprehended on March 7, 1982.

Murphy was not able to arrest defendant until March 16, 1982, when he found him in apartment No. 903. Later that day, a lineup was conducted; Kenneth Lester identified defendant in this lineup as the man whom he saw standing over the victim with a gun in his hand. On direct examination, Murphy identified a photograph as a picture of this same lineup. This was the same photograph that Kenneth Lester had identified. On cross-examination, defense counsel refreshed his recollection of his testimony before the grand jury, where he testified that Ollie Clark told him that she saw the victim fall to the floor.

The parties stipulated that the victim arrived at Mercy Hospital at 2:25 a.m. and was pronounced dead at 3:10 a.m.; that an autopsy was performed on the victim on March 6, 1982; that the autopsy showed that the victim's bile was negative of opiates, his urine was negative of barbituates, he had a blood alcohol content of 68 milligrams, and the cause of death was multiple gunshots to the head.

At the close of its case in chief, the State moved that all of its exhibits be admitted into evidence; there was no objection by defendant. However, argument ensued as to what evidence would go to the jury. Defendant objected to the photographs (People's exhibits Nos. 4 A through F), which were given to police by defendant's sisters, being sent to the jury. The court, in a reversal of its prior decision that the ...


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