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02/24/87 the People of the State of v. Ricky Lewis Talley

February 24, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RICKY LEWIS TALLEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

504 N.E.2d 1318, 152 Ill. App. 3d 971, 105 Ill. Dec. 800 1987.IL.229

Appeal from the Circuit Court of Macon County; the Hon. Jerry L. Patton, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. GREEN and McCULLOUGH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Defendant was charged with home invasion and residential burglary (Ill. Rev. Stat. 1985, ch. 38, pars. 12-11, 19-3). The charges arose from an incident of September 26, 1985, wherein a black male forced his way into the home of a 77-year-old man and held the man at knife point while another man went through the rooms of the house. Defendant's first jury trial ended in mistrial. After a second jury trial, defendant was convicted of both offenses and sentenced to terms of six years' imprisonment and four years' imprisonment, respectively, to be served concurrently. Defendant appeals from the judgment of the circuit court of Macon County. We affirm.

On appeal, defendant raises the following arguments: (1) whether he was proved guilty beyond a reasonable doubt of home invasion and residential burglary on the basis of fingerprint evidence; (2) whether comments in the prosecutor's opening statement amount to reversible error, where the prosecutor informed the jury that Terry Smith would testify that he had committed the offenses with the defendant, but failed to produce this testimony when Smith refused to testify; (3) whether the trial court erred in refusing to grant a mistrial based on defendant's right to be tried by an impartial jury, when several jurors had read a newspaper article about Terry Smith's refusal to testify against defendant; (4) whether comments by the prosecutor in closing argument, referring to defendant's failure to call alibi witnesses whose existence was elicited during cross-examination of defendant by the State, amounted to reversible error; and (5) whether the trial court erred in denying defendant's motion for a mistrial based on the State's use of two peremptory challenges to exclude black veniremen from jury service.

At trial, the victim of the offense testified that he had lived in his four-room house in Decatur for 45 years, living alone since 1972. A black man knocked on his door the evening of September 26, 1985, and the victim declined to let the man use the phone. The black man jerked the screen door open and shoved the victim across the room into a chair. The victim testified that the man sat on a footstool beside him, picked up a knife, held it to the victim's throat and said he was going to kill him. Another black man entered the house. Although the perpetrators turned the light in the living room off and the victim never saw the second black man's face, he identified the man who first entered the house and held him at knife point as Terry Smith. The victim testified that while Smith kept him in the chair, the second man went through the rooms of his house, turning things over and throwing things out of drawers. He said he was kept in the chair for 8 to 10 minutes before Smith took him in the bedroom, made him lie on the floor, and tied him with an extension cord and piece of rubber hose. Smith took the victim's money from his billfold, $46, and ring from his hand.

The victim testified that he did not know the defendant and that he gave neither defendant nor Smith permission to enter his house, take any items, or threaten him. He identified photographs, including one taken in his bedroom showing several box lids among items strewn upon the bed. He testified these items were usually kept in a dresser drawer, had been in the drawer more than 10 years, and had not been out of the bedroom in 10 years. He further testified that he had never let the defendant or any black male into his bedroom and had not let defendant handle the items before this incident. The victim identified the money recovered from Smith as being the denominations taken from his wallet during the offense, and the ruby ring as that taken from his hand.

Decatur police officer Robert Harvey testified he received a call to back up another officer on the home invasion. He testified that he stopped and questioned a black male, Terry Lee Smith, walking in an alley about two blocks from the residence. Smith was carrying $46. After Smith was transported to the police station, a search of the squad car disclosed the ruby ring.

Officer Mike Mowen testified as crime-scene technician and fingerprint expert. He processed the scene of the offenses at about 7:45 p.m. on September 26, 1985. He testified that the rooms of the house were in general disarray, and identified photographs he took of items processed for fingerprints, including two box lids shown on the victim's bed and an exhibit showing the latent fingerprint lifts made from the lids.

Decatur police detective George Lebo testified as a fingerprint expert that he had compared the prints lifted from the box lids to those taken from the defendant. He opined that, within a reasonable degree of scientific certainty, the prints from the box lids matched defendant's known prints -- two separate lifts of his left thumbprint on one box lid, and the latent prints of the left-ring and left-middle fingers of defendant on the other box lid.

Defendant took the stand in his own defense and denied going to the victim's house or invading it on September 26, 1985. He further denied going with Smith to the victim's house, taking items from him, and tying him up and leaving him there.

On cross-examination, it was elicited from defendant that on September 26, 1985, he was with his brother, Gordon Talley, at the residence of Annette Davis (Gordon's girlfriend) from about 5:30 p.m. until 12:30 p.m. the next afternoon. Defendant testified he played cards that day. He stated that his little brother, Charles Talley, and Charles' girlfriend, Aparreed, were also there; and that these five people were at the house with him the whole time. Defendant stated he did not see Terry Smith on the day of the offenses. Defendant testified that he did not know the victim, had never been inside the victim's house, and had never touched any boxes there.

On appeal, defendant argues he was not proved guilty beyond a reasonable doubt of home invasion and residential burglary since the victim was unable to identify him as one of the perpetrators and only the fingerprint evidence linked him to the offenses. The law in this area is clear:

"'Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.' (Devine v. Delano (1916), 272 Ill. 166, 179-80[, 111 N.E. 742]; 29 Am. Jur. 2d Evidence sec. 264 (1967).) Circumstantial evidence is generally sufficient to support a conviction if it is inconsistent with any reasonable hypothesis of innocence, but the trier of fact need not search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. (People v. Hancock (1978), 65 Ill. App. 3d 694, 698[, 382 N.E.2d 677].) Fingerprint evidence is circumstantial evidence which attempts to connect the defendant to the offense alleged. (People v. Malmenato (1958), 14 Ill. 2d 52, 62[, 150 N.E.2d 806]; People v. King (1980), 88 Ill. App. 3d 548, 552[, 410 N.E.2d 1070].) In order to sustain a conviction solely on fingerprint evidence, fingerprints corresponding to the fingerprints of the defendant must have been found in the immediate vicinity of the crime under such circumstances as to establish beyond a reasonable doubt that the fingerprints were impressed at the time the crime was committed. People v. Taylor (1965), 32 Ill. 2d 165, 168[, 204 N.E.2d 734]; People v. Malmenato (1958), 14 Ill. 2d 52, 62[, 150 N.E.2d 806]; People v. Reno (1975), 32 Ill. App. 3d 754, 758[, 336 N.E.2d 36]." (People v. Rhodes (1981), 85 Ill. 2d 241, 248-49, 422 N.E.2d 605, 608.)

Accord, People v. Yates (1983), 98 Ill. 2d 502, 525-26, 456 N.E.2d 1369, 1381, cert. denied sub nom. Williams v. Illinois (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364; People v. Taylor (1965), 32 Ill. 2d 165, 168, 204 N.E.2d 734, 736 (despite presence of other "smudged" fingerprints on window of burglarized apartment, unexplained presence of defendant's prints is not consistent with any reasonable hypothesis of innocence); People v. Poole (1981), 99 Ill. App. 3d 939, 941-42, 426 N.E.2d 306, 308-09; People v. Watts (1983), 98 Ill. 2d 70, 74, 456 N.E.2d 56, 58-59 (where defendant's fingerprints were found on bottom of desk drawer at scene of crime, error in using term "doubt" instead of "theory" in circumstantial evidence instruction was harmless); People v. King (1978), 61 Ill. App. 3d 49, 57, 377 N.E.2d 856, 862; see generally Annot., 28 A.L.R. 2d 1115 (1953).

The defendant does not have the burden of proving his innocence but, when he takes the stand, the reasonableness of his testimony will be Judged by its improbabilities by the trier of fact. Where the evidence is conflicting, the credibility of the witnesses and the weight to be given their testimony is a question for the finder of fact. (People v. Rhodes (1981), 85 Ill. 2d 241, 250-51, 422 N.E.2d 605, 607, quoting People v. Malmenato (1958), 14 Ill. 2d 52, 60-61, 150 N.E.2d 806, 811, cert. denied (1958), 358 U.S. 899, 3 L. Ed. 2d 148, 79 S. Ct. 222.) Upon careful review we conclude that although the fingerprint evidence was circumstantial evidence of defendant's guilt, it was circumstantial evidence of the highest order. Defendant was proved guilty beyond a reasonable doubt.

Defendant also challenges the sufficiency of Detective Lebo's testimony, maintaining that the State failed to elicit facts indicating the basis for Lebo's opinion that defendant left the latent prints. The record shows that the defense counsel conceded the foundation requirements for Lebo's testimony, had the opportunity to cross-examine Lebo, and did so. Additional detail in the testimony was a matter for cross-examination and went to the weight of the testimony. The jury heard the testimony and had the responsibility to Judge the credibility of the witnesses and ascertain the truth. We find defendant's argument to be without merit. (People v. Yates (1983), 98 Ill. 2d 502, 525, 456 N.E.2d 1369, 1381.) We likewise reject defendant's objection that Detective Lebo did not testify that the latent prints were absolutely defendant's, saying only that they matched within a reasonable degree of scientific certainty. The testimony was sufficient., Defendant next argues that the prosecutor's comments in opening statement amounted to reversible error. His comment was as follows:

"The police were called. Officer Robert Harvey from the city police department will testify he arrested one of these persons a few blocks away from the house. This was Terry Smith, a black male. He found some items on Mr. Smith, which matched items taken from this home invasion and burglary. Mr. Smith made some statements and he will testify, too, that he did go to that house and commit a theft and home invasion and Ricky Talley, this defendant, was with him." (Emphasis added.)

The State called Terry Smith outside the presence of the jury. Smith declined the State's order of immunity, refused to testify, and was held in contempt. After the State rested, defense counsel moved for a mistrial based on (1) the prosecutor's remark in opening statement that Smith would testify that he committed the offenses with defendant, and (2) the prosecutor's failure to present such testimony. The prosecutor represented that Smith changed his mind at the last minute and had been willing to testify the day before and until 1:00 on the afternoon of trial. The trial court denied the motion for a mistrial, finding that the statements of the prosecutor were not improper based upon the last information he had from the witness. When this argument was renewed in defendant's post-trial motion and argued in court, the prosecutor represented that Smith had been willing to testify until about 10 minutes before he was put on the stand. In denying the post-trial motion, the court specifically disagreed with defense counsel's interpretation that the prosecutor's comment in opening statement had been made in bad faith.

It is improper for a prosecutor to comment on what testimony will be introduced at trial and then fail to produce that evidence. (People v. Warmack (1980), 83 Ill. 2d 112, 125, 413 N.E.2d 1254, 1260.) While error may occur when the prosecution asserts in the opening statement the facts or propositions on which no evidence later is presented (People v. King (1986), 109 Ill. 2d 514, 535, 488 N.E.2d 949, 960), in order to constitute reversible error, remarks by counsel must be such as to give reasonable grounds for believing that the jury was prejudiced thereby and that its verdict was affected by the remarks (People v. Allen (1959), 17 Ill. 2d 55, 63, 160 N.E.2d 818, 824; People v. Jenko (1951), 410 Ill. 478, 485, 102 N.E.2d 783, 786; Siebert v. People (1892), 143 Ill. 571, 591, 32 N.E. 431, 436). The authority to declare a mistrial is within the discretion of the trial court and is not subject to review absent an abuse of discretion. (People v. Chaffin (1971), 49 Ill. 2d 356, 362, 274 N.E.2d 68, 71-72 (and cases cited therein).) The character and scope of argument to the jury is left largely to the trial court and every reasonable presumption must be indulged that the trial Judge has performed his duty and properly exercised the discretion vested in him. People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 327.

Bearing in mind this standard of review, we note that the trial court expressly disagreed with defense counsel's suggestion that the prosecutor's statement had been made in bad faith. On this record, we find no abuse of discretion. People v. Butler (1973), 12 Ill. App. 3d 541, 548, 298 N.E.2d 798, 802-03; People v. Moore (1980), 90 Ill. App. 3d 760, 766, 413 N.E.2d 516, 521-22; People v. Harris (1979), 70 ...


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