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People v. White

OPINION FILED JUNE 12, 1985.

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

v.

THOMAS WHITE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. Richard F. Weiler, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 15, 1985.

The defendant, Thomas White, was convicted by a jury on indictments in the circuit court of Kane County for home invasion and residential burglary. (Ill. Rev. Stat. 1983, ch. 38, pars. 12-11(2), 19-3(a).) He was sentenced to the Illinois Department of Corrections for concurrent extended terms of 40 years for home invasion and 30 years for residential burglary.

At trial, Officer Schmidt of the Elgin police department testified that he responded to a call to go to a residence at 411 Prospect Street in Elgin on July 9, 1983. There he found Gertrude Waite and her son, Howard Waite. The left side of Mrs. Waite's face was swollen and bruised. She seemed confused and could not remember what had happened, but was alert. Schmidt found no blood and no sign of a struggle or of a forced entry. He said that after Mrs. Waite was taken to the hospital, she was checked for possible sexual assault but that it was not determined "at that time" that there was such an assault. The defendant moved for a mistrial on the grounds the defendant was unduly prejudiced by Schmidt's reference to a sexual assault when, as admitted by the prosecutor in chambers, there was no evidence Mrs. Waite had been sexually assaulted. The defendant's motion was denied.

Several Elgin police officers testified to a search of the area surrounding the Waite apartment. Officer Darr found Mrs. Waite's wallet in the street in front of an adjacent vacant lot; Officer Christ found a purse and glasses and other identification belonging to Mrs. Waite in some bushes on the vacant lot and some miscellaneous papers on the lawn of the house on the corner; Officer Bjorklund took latent fingerprint lifts from Mrs. Waite's sunglasses, from the TV stand inside the Waite apartment, and from a dresser.

One of the officers assigned to investigate the case, Detective Landwehr, testified that he had information the day following the incident that two black males and one white female were involved. He then received further information from an anonymous telephone caller. Over a defense objection, Landwehr was allowed to testify to the content of the call; namely, that Lujuana McCain, Thomas White, and a person known to the caller by the possible alias of Tompy Douglas were the perpetrators.

Based on information subsequently obtained from McCain, Landwehr and three other officers executed a search warrant for a house occupied by a woman named Jerrie Bullard and her children on Hickory Street. The officers found a black and white RCA portable television and mail belonging to the defendant in a first floor bedroom, and a VISA credit card belonging to Gertrude Waite between the sofa cushions in a central first floor room.

Landwehr testified that he performed a fingerprint analysis, comparing the items seized from the Bullard house and the prints lifted previously by Officer Bjorklund to prints of McCain and the defendant. The defendant moved for a mistrial when Officer Landwehr testified "[they] had another" fingerprint card of the defendant to use for comparison purposes than the one identified at trial as the "State of Illinois fingerprint card which was taken at the time of Mr. White's arrest by Detective Bricktson [sic] on the 11th." The motion was denied.

Landwehr testified he was told that other people lived in the Bullard house, and that to his knowledge, Lujuana McCain lived there. He did not know who slept in the bedroom in which the TV was found.

Elgin detective James Lamkin, in charge of the investigation of the offense, testified that he received a telephone call from a confidential informer, described as a person familiar with the community and people in it. Over defense objection, Lamkin was allowed to testify that the caller stated that he had seen the defendant with Lujuana McCain and another black male the previous night, the night of the Waite burglary. Over another defense objection, Lamkin testified the officers who initially investigated the offense had spoken with someone who had seen a white female and two black males in the lot adjacent to the Waite residence on July 9.

Lamkin testified he spoke with the defendant, upon the defendant's request, in the Kane County jail on July 14. After the defendant queried Lamkin about the events leading to his arrest, the defendant denied any involvement in the incident, but then told Lamkin that he "had returned to the area where this incident occurred and he had picked up the purse

looking through it." On cross-examination, Lamkin testified the defendant did not admit to being in the Waite apartment and striking Gertrude Waite.

Joseph Ambrozich, a forensic scientist and latent print examiner with the Illinois Department of Law Enforcement, testified he compared the latent prints lifted by Officer Bjorklund with the defendant's and Darryl Daniels' (a/k/a Tommy Douglas) fingerprint cards. The only match was of the defendant's right middle fingerprint which was found on Mrs. Waite's sunglasses.

Howard Waite, the victim's son, testified he returned home about midnight and found his mother sitting in the dark. He noticed a TV set was missing from the living room and that his mother had a swollen jaw. Another TV set in an adjacent bedroom was also missing. He testified his mother was very incoherent, but "she mentioned they took her purse" and that `she said they hit me when I tried to stop them from taking my purse." On cross-examination, Waite recalled telling Officer Schmidt that his mother could not really remember what happened to her when she was attacked.

An emergency room nurse at Sherman Hospital in Elgin, Karen Gartner, testified Mrs. Waite had a large bruise on her lower left jaw. Her vital signs were stable. She seemed a little drowsy and not too clear about the events of the prior several hours. Gartner testified without objection that she assisted the doctor in taking evidence for the rape kit, which was given to an Elgin police department detective. Over defendant's "leading" objection, Gartner was allowed to testify that Mrs. Waite's injury was consistent with one caused by being punched on the jaw. On cross-examination, Gartner acknowledged there are other ways to fracture a jaw besides being punched, and that she had no personal knowledge either that Mrs. Waite had been punched or assaulted. She stated Mrs. Waite's physical examination revealed that she was alert and oriented. With reference to the rape kit, Gartner stated there was no evidence Mrs. Waite had been raped.

Doctor Viswanatham Susarla attended Mrs. Waite in the hospital after she was brought to the floor from the emergency room. Doctor Susarla confirmed the victim had a broken jaw, but was alert and well-oriented, and not in shock, although she did have some high blood pressure and some abnormality in her electrocardiogram. The doctor testified Mrs. Waite told her she had a robbery and that "she was punched on her left side and that's how she got the injury over the left jaw and upper part of the neck."

Mrs. Gertrude Waite testified she remembered being in the hospital after the incident, and that she had her 75th birthday while she was there. She said she now has extreme difficulty in remembering things. She identified her purse and its contents which included her sunglasses, and her VISA card. She testified she "had no recollection of who they were or what they did."

Lujuana McCain testified for the State. She admitted she had a prior cannabis conviction and two felony theft convictions. She said she walked to a friend's home with the defendant and Darryl Daniels about 10 p.m. on July 9. She went inside alone, and when she came back out about 15 minutes later, she saw Daniels standing down the street. She later denied on cross-examination having made a contrary statement to the police that she saw both Daniels and the defendant standing down the street.

McCain testified she walked down to where Daniels was, and they waited for the defendant for about five minutes. They began to leave, but the defendant called to Daniels, and they went back to where the defendant was standing in front of the driveway of a big white house that had a back porch light on. The defendant was holding a Singer color TV. He told Daniels he had knocked out an old lady in the house, and that he wanted Daniels to help him get another TV and stereo from the house. Daniels did not go back in the house with the defendant, but he hid the TV in some bushes by the vacant lot next to the house, and then he and McCain stood by the bushes. About five minutes later, the defendant came back out of the house carrying a second TV and a purse.

He put the TV in the bushes next to the other one, and emptied everything out of the purse, taking a blue checkbook. They then walked away down Prospect and continued on down to Fremont Street in Elgin. The defendant flagged down someone named Jimmy passing in a car, and the two had a conversation. Jimmy told two friends who were riding in his car to get out of the car, the defendant and Daniels got in the car, and the three of them left. McCain and Jimmy's two friends then walked to Jerrie Bullard's house on Hickory. McCain denied she lived there, and testified Jerrie and Jerrie's kids lived there.

The defendant and Daniels arrived about 10-15 minutes later, carrying the two TV's. They verified the TV's were in working order by plugging them in, and the defendant and Daniels left again to see if they could sell the TV's. They returned with the TV's about one hour later. The defendant left again, alone this time, and returned with Tompy Spates, who agreed to buy the color TV from the defendant for $50. McCain testified the defendant took the $50 from Spates for the TV.

McCain testified the other TV was put in the first bedroom to the left off the living room. She testified Jerrie and the defendant were living together, and that was their bedroom.

McCain testified she had known the defendant for about six months. She admitted her testimony was being given in exchange for the State's agreement to a reduction of her residential burglary charge to felony theft, dismissal of three misdemeanor charges, and a five-month sentence in the Kane County Corrections Center.

On cross-examination, McCain admitted she formerly used narcotics known as "T's and blues," and had used a needle and syringe to inject narcotics. She said the defendant also found a VISA card inside the blue checkbook, and she told the police she thought the checkbook and VISA card were in the defendant's dresser drawer in the bedroom. She testified the three misdemeanor charges which were to be dismissed in exchange for her testimony against the defendant were for Class A misdemeanors: driving under the influence, driving with license suspended, and retail theft. She acknowledged that she pleaded not guilty when she was arraigned on the residential burglary charge, but stated that she was going to plead guilty to the reduced charge of felony theft.

Tompy Spates testified for the State that he had known the defendant for five or six years and the defendant flagged him down as he was driving his truck and said that someone needed money and had a TV they wanted to sell. Spates said he was not interested, but the defendant got into Spates' truck and said he should look at the TV at least, because it was a pretty good one. They drove to a house on Hickory Street, and went inside where there was a white girl and a black man. The black man went into a room by the washroom, brought out a TV, and plugged it in. The black man said he would give Spates the $50 back in a couple of days, and that Spates could just hold the TV as collateral.

Spates agreed, and took the TV, which was a color portable, to his own house, where it was later recovered by the police.

On cross-examination, Spates said he really did not give the $50 to anyone, just laid it on the table by the black man.

The defendant called Officer Lamkin to testify. He stated that McCain said when she left her friend's house, she initially did not see anyone down the street, but then she saw Tommy Douglas (a/k/a Darryl Daniels) standing farther down on Prospect Street. After his recollection was refreshed with his initial written report of the incident, Officer Lamkin said McCain told him she saw "them" farther down on Prospect, meaning the defendant and Tommy Douglas.

On cross-examination, Lamkin stated that during the subsequent taped interview with McCain, he asked her: "Did you then go down to where they were at?" and she answered: "I went down where Tommy was and I asked him where Thomas was and he said that he went in the backyard of the white house."

The defendant appeals his convictions, contending he was not proved guilty beyond a reasonable doubt due to the weakness of the testimony of Lujuana McCain, the defendant's accomplice; that prejudicial questioning and argument by the prosecutor denied him a fair trial; that the court erred in allowing inadmissible and highly prejudicial hearsay testimony concerning the anonymous phone caller and the confidential phone caller; and that his sentences are excessive in that they are so grossly disparate from the negotiated sentence of Lujuana McCain.

REASONABLE DOUBT

The defendant contends he was not proved guilty beyond a reasonable doubt because the only witness who identified him as the offender was an accomplice who negotiated a very favorable disposition of the charges lodged against her in return for testimony against him.

The record does not validate the defendant's contention.

The court in People v. Wilson (1977), 66 Ill.2d 346, 349, pointed out that Illinois has followed "the rule that uncorroborated accomplice testimony is a sufficient ground on which the trier may base a conviction," citing as examples People v. Hermens (1955), 5 Ill.2d 277, People v. Williams (1960), 19 Ill.2d 171, and People v. Pittman (1973), 55 Ill.2d 39. (See also, e.g., People v. White (1984), 122 Ill. App.3d 24, 34.) However, the rule is not rote.

• 1 The testimony of an accomplice must be regarded skeptically since it frequently is propelled by self-interest fueled by prosecutorial discretion. When a witness, such as an accomplice, has hopes of reward from the prosecution, the testimony of that witness should not be accepted unless it carries with it an absolute conviction of its truth (People v. Newell (1984), 103 Ill.2d 465, 470; People v. Williams (1976), 65 Ill.2d 258, 267), and it must be cautiously scrutinized on appeal. People v. Baynes (1981), 88 Ill.2d 225.

• 2 The fact that an accomplice witness has received or expects to receive a reward or some measure of consideration in exchange for testimony against the defendant does not of itself render it insufficient to prove the defendant's guilt (People v. Sangster (1981), 95 Ill. App.3d 357; People v. Musgray (1976), 37 Ill. App.3d 48); rather, whether accomplice testimony, corroborated or uncorroborated, is a satisfactory basis for conviction goes to the weight of the evidence and is, therefore, in the province of the jury or the court. (People v. Farnsley (1973), 53 Ill.2d 537.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses, but will reverse only if the evidence is so improbable, impossible, or unsatisfactory as to raise a reasonable doubt of the defendant's guilt (People v. Winfield (1983), 113 Ill. App.3d 818; People v. Pittman (1982), 93 Ill.2d 169), or reversal is necessary to prevent an apparent injustice. People v. Musgray (1976), 37 Ill. App.3d 48, 50.

The defendant contends here that Lujuana McCain's testimony was the only evidence that he was the perpetrator of the offenses, and that her testimony as to that fact was uncorroborated. Because she was an accomplice and her testimony was extraordinarily tainted by virtue of the extreme leniency afforded her by the State, defendant argues the case rests on evidence insufficient to prove him guilty beyond a reasonable doubt. He relies heavily for support on the recent decision of People v. Ash (1984), 102 Ill.2d 485, 493.

In Ash, the Illinois Supreme Court affirmed the appellate court's reversal of the defendant Ash's conviction for insufficient proof. The court found the testimony against the defendant by Phelps, an accomplice, did not carry with it an "absolute conviction of its truth." In so deciding, the court focused on the fact Phelps was seeking a lenient sentence, dismissal of some charges, and had admitted on cross-examination that he would "do just about anything" to avoid imprisonment with three individuals against whom he had testified in 1976 and who allegedly had put out a contract on his life. Phelps also freely acknowledged that he would lie in order to save his life. In addition, the court in Ash focused on the evidence which supposedly was corroborative of Phelp's testimony, noting that although it described certain events surrounding the crime and, thus, corroborated what had happened, it did not serve to corroborate who had committed the crime.

The Ash court additionally rejected the State's argument there that the identification testimony of one of the victims was sufficient to support the defendant's conviction. The court found her identification of the defendant was vague and doubtful in view of the glaring discrepancies between her verbal description of the offender and the defendant's actual physique; the unexplained lapse of time before either of the victims viewed any of the defendants who were in custody; the fact the victim twice identified attorneys seated in the ...


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