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People v. Wolfe

OPINION FILED MAY 27, 1986.

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

v.

SAMUEL WOLFE ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Earl Strayhorn, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendants Samuel Wolfe and Nathaniel Hart were found guilty of murder and armed robbery and sentenced to concurrent sentences of 80 and 30 years. On appeal, they claim that the trial court abused its discretion in allowing each of them a total of only six peremptory challenges during voir dire examination of prospective jurors and in refusing to sever their cases from one another. Defendants also claim that the trial court erred in allowing improper prosecutorial remarks and trial testimony which denied them a fair trial. We affirm.

At trial, the State's chief witness, Jerry Levy, testified that at approximately 9 a.m. on February 8, 1983, he was drinking some wine behind the Fernwood Food and Liquor Store in Chicago. Levy heard several shots coming from the store and dropped to his knees. Levy was approximately 20 feet from the back door, hidden by a garbage can, when he saw both defendants Wolfe and Hart fleeing from the store. He stated that he recognized defendants from the neighborhood. Levy noticed defendant Wolfe carrying a bag and Hart carrying a bag as well as a gun which looked like a .45-caliber weapon. He heard coins clanking and noticed a can of beer drop as defendants fled. Defendants looked back at Levy as they ran. Once they were out of sight, Levy went into the store and saw an Arab known as "Tony" lying on the floor bleeding. Levy picked up a can of beer and ran home. He did not contact the police or anyone else that day.

Levy stated that two days after the occurrence, he was with his friend, Charlie Hite, and the two ran into defendant Wolfe. Wolfe told Levy "You know I ofted them Arabs, don't you?" then warned Levy that if he wasn't careful, Levy might not live until summer either. The jury was instructed to apply this conversation to defendant Wolfe only.

Levy further testified that he returned to Fernwood Liquors the following day and left his phone number with one of the clerks. He was subsequently contacted by the Chicago police department and identified both defendants from a photographic display as the men he saw fleeing from the store after the shootings. After testifying before a grand jury, Levy was given money to fly to Florida until defendants were brought to trial.

Expert testimony was then introduced to establish that one of the Arab clerks found in the store died as a result of gunshot wounds from a .45-caliber weapon and the other from a .32-caliber weapon.

Detective Robert Flood testified that after arresting defendants and advising each defendant of his rights, he interviewed each of them separately. At that time, Wolfe protested his innocence, claiming that Hart and Hart's brother, James, were the persons responsible. Thereafter, Hart was brought into the interview room where Wolfe was being held. According to Flood, Wolfe nodded affirmatively to questions regarding his previous testimony about the Hart brothers. On cross-examination, Flood admitted that the two defendants were brought together as a technique in order to get a statement from Hart.

Thirty minutes after the confrontation, after again advising him of his Miranda rights, Flood conducted a subsequent interview with Hart. At that time, Hart stated that his brother James had had nothing to do with the murders. Hart also stated that at 9 a.m. on the day of the murders Wolfe arrived at Hart's house armed with a gun and asked whether Hart was ready to rob the store. The two had discussed the robbery the previous day. Hart admitted getting his own gun and proceeding to the store with Wolfe, but claimed only to have acted as a lookout while Wolfe did the actual shooting.

Flood then confronted defendant Wolfe with Hart's statements. In response, Wolfe stated that he and Hart had planned the robbery at Hart's house and that Hart had suggested that they kill the Arabs because the Arabs knew them. Wolfe also stated that, at Hart's suggestion, the two left Hart's house to rob the store on the morning in question and that Hart had supplied Wolfe with a .32 revolver and had a .45 revolver for himself. Wolfe claimed that Hart's brother James was present throughout the conversation and had accompanied defendants to the store, but had left before anything happened. According to Wolfe, Hart pointed a gun at one of the two store clerks, while Wolfe ordered them to lie on the floor. Each defendant then emptied a cash register on opposite sides of the store. Wolfe claimed that while he waited in the back of the store, Hart took the gun from him and returned to the front of the store where he shot the clerks. During this statement, Wolfe accurately described the clothing of both victims.

Assistant State's Attorney William Merritt also testified. After advising defendant Wolfe of his rights, Merritt got a written statement from Wolfe, who told him that he did not want to be charged with murder because he did not want to shoot anyone, but only to rob the Arabs. Wolfe's written statement corroborated his statement given earlier to Flood.

Merritt then read a written statement given by Hart. Hart's written statement differed slightly from his earlier statement and in it he denied having ever carried a gun on the morning of the murders.

Detective John Solecki testified that he also interviewed both defendants later that same evening. Solecki stated that after being advised of his Miranda rights, Hart told him that he, his brother and Wolfe had been discussing the robbery at the Hart's house on the morning in question. Each defendant had his own gun. The three proceeded to the store, but James Hart backed out and returned home. Hart stated that he and Wolfe entered the store, at which time Wolfe announced a robbery and fired shots at one of the victims. Hart then admitted firing shots at the other victim. After cleaning out the cash registers, defendants fled the store through the rear door.

A later interview was also conducted with Wolfe, who told Solecki that after returning from the liquor store, he had given the .32-caliber revolver back to Hart. He believed that both guns belonged to Hart and Hart's brother. During the reading of defendants' statements, the jury was repeatedly instructed that each statement could only be used as evidence against the person giving it.

Defendant Wolfe testified at trial, stating that on the morning of the murders, he left his home at 8 a.m. and was gone until approximately 11 a.m., during which time he was filling out employment applications at the Hardy Glass Company and at a new Zayre's store. He claimed that he learned about the murders upon ...


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