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01/11/88 the People of the State of v. Kerry Smith

January 11, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KERRY SMITH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

520 N.E.2d 841, 165 Ill. App. 3d 905, 117 Ill. Dec. 490 1988.IL.14

Appeal from the Circuit Court of Cook County; the Hon. Robert Boharic, Judge, presiding.

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. CAMPBELL, P.J., and QUINLAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

Following a jury trial in the circuit court of Cook County, the defendant Kerry Smith (a/k/a Kerry Jackson) was found guilty of aggravated battery, attempted murder and armed robbery of Homer Rouse. He was subsequently sentenced to serve concurrent extended terms of 55 years for attempted murder and 55 years for armed robbery. The trial court reasoned that this sentence was imposed due to the viciousness of the crime and because the victim was over the age of 60. The defense counsel filed a motion for a new trial objecting to the in-court identification and the improper comments of the prosecution regarding the defendant's failure to testify. The motion was denied by the trial court and the defendant filed this appeal.

In this appeal the defendant contends that: (1) he was not proven guilty of attempted murder and armed robbery beyond a reasonable doubt; (2) the trial court abused its discretion in allowing the prosecution to elicit testimony that the complainant had made prior consistent statements of the defendant's guilt to third parties; (3) his constitutional right to remain silent was violated; and (4) the concurrent 55-year extended-term sentences were excessive.

Homer Rouse, the victim, testified that during the morning of April 2, 1983, he walked to the currency exchange on 61st Street to pay a utility bill. On his way back home he encountered the defendant, Kerry Jackson (a/k/a Kerry Smith). Mr. Rouse had known the defendant for two years prior to the April 2, 1983, attack and the defendant actually lived with Mr. Rouse for approximately two months prior to April 2, 1983.

Subsequent to the street encounter, the defendant went to Mr. Rouse's apartment and was allowed in by Mr. Rouse. Mr. Rouse lay down and went to sleep. However, he was awakened by the defendant tying his legs together with an extension cord. While Mr. Rouse was cutting the cord from his legs, the defendant asked him if he had any money. Mr. Rouse replied that he had $80 and proceeded into the living room. The defendant followed Mr. Rouse into the living room, ripped his pocket and took the money. The defendant then pulled out a six-inch scalpel-edged knife and stabbed Mr. Rouse repeatedly in the stomach, head, arms, and cut him in the eye, which resulted in the loss of vision in that eye.

Mr. Rouse "blacked out" and upon awakening, he discovered that his neck and hands were tied. Since he was unable to stand upright, he crawled across the hall to where the janitor, Alonzo DeLoach, lived and bumped his head against the door until it was opened. When Mr. DeLoach came to the door he asked Mr. Rouse, "What happened?" and "Who did this?" Mr. Rouse responded that "Kerry did it." Mr. Rouse further testified that he told the police when they arrived that Kerry Jackson robbed and stabbed him.

Alonzo DeLoach, the janitor in Mr. Rouse's building, testified that he lived across the hall from Mr. Rouse and that Kerry Smith lived with Mr. Rouse for approximately two months. On April 2, 1983, Mr. Rouse bumped against Mr. DeLoach's door and when the door was opened Mr. Rouse was bleeding and tied up. When he asked Mr. Rouse, "Who did this?" he responded, "Kerry Smith."

Officer Cleveland also testified that upon arrival to the victim's apartment, when he asked Mr. Rouse what had happened, he responded that "Kerry Jackson did this to me."

Mr. Rouse was taken to Jackson Park Hospital and transferred to Cook County Hospital, where he stayed approximately two weeks. Upon release, he was taken to a nursing home and he subsequently moved to Indianapolis, Indiana.

The defendant contends that the prosecution failed to sustain its burden of proving him guilty of attempted murder and armed robbery beyond a reasonable doubt since the in-court identification was prompted by the prosecutor. The defendant further contends that "the assistant State's Attorney practically pointed to the defendant" when Mr. Rouse was having difficulty identifying his attacker in the courtroom. Moreover, in response to the defense counsel's objection to these ...


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