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03/23/88 the People of the State of v. Floyd Richardson

March 23, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

FLOYD RICHARDSON, APPELLANT



SUPREME COURT OF ILLINOIS

528 N.E.2d 612, 123 Ill. 2d 322, 123 Ill. Dec. 908 1988.IL.398

Appeal from the Circuit Court of Cook County, the Hon. George M. Marovich, Judge, presiding.

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court. JUSTICE CLARK, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

In a seven-count indictment returned in the circuit court of Cook County, defendant, Floyd Richardson, was charged with the murder of George Vrabel (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)), in the course of the forcible felony of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(3)). Prior to trial, the People nol-prossed three armed violence counts. Defendant presented a written waiver as to his right to have a jury determine whether or not he should receive the death penalty (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(d)(3)), and the circuit court found that this waiver was knowing and voluntary. Following a jury trial, verdicts were returned finding defendant guilty on the charges of murder, felony murder, and armed robbery. At the request of the People, a death penalty hearing was held before the court. The circuit court found the existence of an aggravating factor set forth in section 9-1(b) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)), and found that there were no mitigating factors sufficient to preclude a sentence of death. The circuit court, therefore, sentenced defendant to death on the murder charges. Additionally, the court imposed an extended term of 60 years' imprisonment for the armed robbery conviction. The sentence was stayed (107 Ill. 2d R. 609(a)) pending appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603).

Testimony at trial established that on April 1, 1980, around 10 p.m., Shirley Bowden was working at Twin Foods and Liquors at 2251 East 79th Street in Chicago and conversing with some employees in the liquor department when she noticed a man standing inside the store by a display near the department, towards the rear of the store. The store was empty, except for five clerks and one other customer. She testified that she noticed the man because he was huddled up with his coat collar turned up, despite the fact that it was not that cold outside. Miss Bowden described the man she saw as wearing dark pants, a pea coat, and a winter skullcap. Miss Bowden testified that, as she was returning to her register in the food department at the front of the store, the man passed within four feet of her as he walked back into the liquor department, where George Vrabel worked as a clerk. She then heard a shot, followed by the warning, "Stay down mother f -- -- r. This is a stickup. Stay down." Bonnie Williams, another employee of the store working at a register in the food department at the time, testified that she was told someone was robbing the store and ducked behind the counter, getting up when she heard a shot. Both women looked toward the liquor department to see a man reaching behind the counter taking money out of the register. The man turned from the liquor counter and ran back to the front door of the store, passing both Bowden and Williams; the women observed him at close range but ducked behind the counter as he approached their counter and exited the store. Williams testified that she could see his face only a few feet away from her, describing him as a tall, medium-built black with a medium complexion, wearing a skullcap and glasses. Neither woman could state the precise length of the encounter but both estimated that some 10 to 15 seconds elapsed between the time the first shot was fired and the point at which the gunman left the store. After the gunman had fled, Bowden contacted the police, then went to the liquor department and found Vrabel lying on the floor behind the counter, bleeding. Police arrived and removed Vrabel to the hospital, where he was pronounced dead upon arrival.

Bonnie Williams testified that, in the summer of 1982, she selected defendant's photo from a group of black-and-white photos the police showed her. Shirley Bowden stated that she had never been called to view a lineup. Both women stated that they had seen defendant in the neighborhood prior to April 1, 1980, and both identified defendant at trial as the gunman.

Dr. Shaku Teas, a licensed forensic pathologist, testified that she performed an external examination and an autopsy on George Vrabel. She testified that Vrabel died of a bullet wound to the chest, which severed the aorta and lodged in the muscle behind the right shoulder blade. She noted that the bullet wound and the surrounding tissue contained an amount of gunpowder residue indicating a distance of a few inches to two feet between the firearm and the wound.

Ernest Warner is a firearms examiner for the City of Chicago police department and was qualified by the court as an expert witness. He described to the jury the procedures he employs to compare bullets to determine whether or not they were fired from the same gun, using class characteristics common to all guns produced by a particular manufacturer and individual characteristics unique to each particular firearm. He identified fired bullets recovered from George Vrabel's body and from the wall of a cooler in the Twin Foods Store. He also identified a bullet recovered by the physician who treated Thomas Fitzpatrick for a gunshot wound to the abdomen, after an armed robbery in his tavern on April 5, 1980. Although the murder weapon itself was never recovered, the firearms examiner testified that all three bullets had been fired from the same gun, where they bore the same class and individual characteristics. The witness did not specify the individual characteristics relied upon in reaching his Conclusion.

Thomas Fitzpatrick testified that on April 5, 1980, around 1:30 a.m., he was at his tavern located at 7159 South Exchange Street in Chicago, approximately one mile from the location of the murder four nights earlier. As he was standing at the cash register behind the bar opposite the entrance 15 to 20 feet away, a man entered waving a gun at him. The assailant said "This is a stickup" and jumped over the bar, shooting Fitzpatrick in the back when Fitzpatrick attempted to run. Fitzpatrick crawled to a hallway lit by a fluorescent light. As Fitzpatrick lay on the ground face up, the assailant stood over him and asked him where the rest of the money was, but departed when Fitzpatrick told him there was no more money. Fitzpatrick stated that he was fully conscious during the encounter and estimated the man stood over him for 15 to 20 seconds in the hallway. The witness testified that in May of 1982, he tentatively identified defendant as the gunman, after viewing a series of six photographs. Fitzpatrick added that when he viewed a subsequent physical lineup, he was positive that defendant was the gunman. The witness identified defendant in court as his assailant.

Ray Slagle testified that on April 5, 1980, he preceded another individual through the front door of Fitzpatrick's bar. When someone "hollered" to him, he moved toward a partition separating the poolroom from the rest of the bar; when he got to the partition, he heard shots, at which point he stepped behind the partition and looked out at the bar. At this point, he observed the man who had followed him inside rifling the cash registers behind the bar. The gunman was in the tavern several minutes, during which time Slagle stuck his head out from behind the partition three or four times to see what was happening; as the gunman ran toward the exit, Slagle threw a chair at him. He described the gunman as a black male, 5 foot 9 inches to 5 foot 10 inches tall, of slender build, with medium complexion, wearing a brownish maroon jacket and a cap with a bill. Slagle's description of the assailant as having a scraggly beard coincided with defense witnesses' testimony that defendant was incapable of growing the full beard depicted by the police composite created from descriptions by witnesses to the Vrabel murder. Slagle testified that he selected defendant's picture out of a photographic array shown to him by police in September 1982; he also testified that he identified defendant in a physical lineup on October 5, 1982. Slagle identified defendant at trial as the gunman.

Sergeant James Sanders of the Chicago police department testified that on May 4, 1982, he received a radio broadcast of a robbery in progress at 1640 East 79th Street. While proceeding to that location, the sergeant heard a broadcast describe the assailant as a male black, approximately 5 foot 9 inches to 5 foot 11 inches tall, weighing 160 pounds, with a large Afro hairstyle. The sergeant testified that, when he reached the vicinity of the crime, he observed an individual matching the description and took him into custody for the investigation of that armed robbery. The sergeant then identified defendant in court as the individual he took into custody.

Detective Joseph Dijiacomo testified that, as a Chicago police officer assigned to Area 2 Violent Crimes, he had conducted the follow-up investigation into the Vrabel homicide. He stated that defendant became a suspect in the Vrabel murder when his physical description matched the description of the offender; the circuit court sustained a defense objection to the testimony and, at defense counsel's request, struck the comment from the record and instructed the jury to disregard it. Dijiacomo then testified that upon his review of the daily crime reports in May of 1982, he examined a case report on an armed robbery on East 79th Street, and thereby obtained a photograph of defendant. He and his partner, Detective John Solecki, first prepared a series of six black-and-white photos and then a series of six color photos of men roughly fitting the description given of the Vrabel suspect. Beginning in May 1982, Dijiacomo and Solecki showed the black-and-white photos and then, in September, the color photos to the witnesses in each of the 1980 armed robberies.

Detective John Solecki was called as a defense witness. He testified that in the early morning hours of April 2, he was called to the scene of the Vrabel homicide. After refreshing his memory from a police report, he testified that he had sent a teletype message describing the suspect as wearing a full, trimmed beard. Additionally, he testified that, in the summer of 1982, he had assembled a group of six black-and-white photographs and had shown these to Fitzpatrick and Slagle in the course of his follow-up investigation, despite the fact that defendant was in custody. Solecki testified that after examining those photographs both Fitzpatrick and Slagle identified defendant as the April 5 gunman. Solecki indicated, however, that Fitzpatrick and Slagle requested a physical lineup so that they could be absolutely certain of their identification. He testified that both witnesses positively identified defendant at the physical lineup on October 5, 1982.

Arkonia Richardson, defendant's mother, testified for the defense that defendant had never had a full beard, only a mustache and goatee. After this testimony, the defense rested.

We turn first to defendant's contention that the circuit court improperly admitted evidence of the armed robbery on May 4, 1982, and the shooting of Thomas Fitzpatrick on April 5, 1980. Evidence of crimes for which a defendant is not on trial is inadmissible if relevant merely to establish his propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 137.) Such evidence overpersuades the jury, which might convict the defendant only because it feels he is a bad person deserving punishment. (79 Ill. 2d at 137.) However, other-crimes evidence is admissible if relevant for any purpose other than to show the propensity to commit crime, such as modus operandi, intent, identification, motive, or absence of mistake. (People v. McKibbins (1983), 96 Ill. 2d 176, 182.) Nevertheless, circuit courts must not use this broad standard of admission to bypass the principal portal of admissibility, i.e., the relevance of the evidence to the proof of some fact at issue in the case. Where the grounds for the relevance of a piece of evidence are speculative at best, admission should be denied. People v. Lindgren (1980), 79 Ill. 2d 129, 140.

The testimony relating to the April 5, 1980, shooting of Thomas Fitzpatrick was highly relevant and admissible. Although defendant maintains that significant differences existed between the April 1 and April 5 crimes (i.e., the assailant in the Vrabel murder did not enter the store waving a gun, did not jump over the counter, used profanity in requesting money and was not described as wearing a full, trimmed beard), we have never suggested that other crimes must be identical to the crime charged before evidence of them is admissible. (See People v. Taylor (1984), 101 Ill. 2d 508, 521.) The evidence of the April 5, 1980, shooting clearly tended to identify defendant as the perpetrator of the April 1, 1980, murder, in light of the evidentiary links between the two crimes. Expert testimony at trial established that the same gun fired the bullet which killed Vrabel and the bullet which wounded Fitzpatrick. Further, the testimony defendant sought to exclude included eyewitnesses to the April 5 shooting identifying defendant as the gunman. Testimony that defendant was the man holding that particular weapon during a solo armed robbery on April 5 is clearly relevant to the determination of whether he was the man holding the weapon on April 1, when it was used to kill George Vrabel. Defendant's speculation that the same gun could have been passed from one person to another, perhaps among gang members, is completely unsupported by the record and does not require a contrary Conclusion.

The Dissent contends that there was insufficient evidence to establish that the same gun was used in both the April 5 incident and the April 1 incident, and that therefore evidence of the April 5 incident should have been excluded. Specifically, the Dissent contends that the expert's testimony that the same gun was used in both incidents lacked foundation. In this regard we note that at trial defendant failed to object to the supposed lack of foundation. Accordingly, he has waived this objection. (People v. Smith (1985), 106 Ill. 2d 327.) Moreover, as explained below, use of the expert's testimony in this regard, if erroneous, did not involve a plain error affecting substantial rights. Accordingly, defendant cannot raise the issue on appeal. 107 Ill. 2d R. 615.

With regard to identification of the bullets in question, the expert testified that the basis for firearms identification is the similarity in the reproduction of the class and individual characteristics. He identified various class characteristics common to the bullets involved herein, and he explained that class characteristics are characteristics common to certain types of weapons. He further stated that class characteristics "are useful to us in eliminating weapons as opposed to identifying them."

He also explained the meaning of "individual" characteristics. He stated that such characteristics are characteristics unique to a firearm due to microscopic imperfections in the metal of the barrel. He further explained that each bullet fired through the barrel of a weapon picks up a reverse impression of these unique microscopic imperfections. He testified that the presence of the same individual characteristics on two different bullets is determined by examining the bullets side by side under a comparison microscope. He also testified that he performed this procedure with respect to the bullets here in question, and following that examination concluded that the bullets were fired from the same gun. While he was not asked to describe what identical imperfections in the bullets existed, we believe it sufficient that he concluded that such identical imperfections existed. Specifying what those imperfections looked like would have added little, if any, probative value to his testimony. In our view, his testimony, when considered in its entirety, contains sufficient foundation for the Conclusions which he reached.

Moreover, if defendant had any genuine basis to doubt that the same individual imperfections existed on both bullets he could have objected to the Conclusion reached during direct examination or, at the very least, he could have gone into the matter during cross-examination. He did neither, and consequently he is precluded from arguing the matter on appeal.

Defendant's assertion that evidence regarding the April 5 offense was presented in such detail as to unnecessarily prejudice defendant is also unfounded. As noted in People v. Butler (1975), 31 Ill. App. 3d 78, 80, "[w]hen evidence of other offenses is admissible on the question of identity it should be confined to such details as show the opportunity for identification and not the details of the crime." Upon examination of the record, it appears that the People elicited no more detail than was necessary to establish the opportunity Fitzpatrick and Slagle had on April 5 to view the gunman, as well as their physical condition at the time. Moreover, even if some of the detail was not essential, the detailed evidence clearly did not constitute prejudicial and reversible error. See People v. McKibbins (1983), 96 Ill. 2d 176, 186-87.

Although the People assert numerous grounds for admitting evidence of the May 4, 1982, armed robbery, we find no justifiable basis for its admission. Contrary to the People's assertion, the evidence was not admissible merely to show how the investigation unfolded and how defendant came into custody. These purported bases for admission beg the critical question of relevance to prove defendant's commission of the crimes in issue and are not supported by our prior decisions. For example, in People v. McKibbins (1983), 96 Ill. 2d 176, cited by the People, this court affirmed the admission of evidence detailing the events of the defendant's arrest when discovered in the act of robbing a jewelry store, but only where the evidence was also relevant to specifically connect the defendant with the crimes for which he was being tried, a robbery and murder which had occurred two days earlier. (96 Ill. 2d at 184.) The circumstances of the jewelry store robbery tended to establish that the defendant had participated in the earlier murder with the necessary criminal intent. (96 Ill. 2d at 186.) In the present case, however, the People have not established any "threshold similarity" between the May 4 arrest and the April 1 murder which might render the circumstances of the former offense probative of the latter (see People v. Bartall (1983), 98 Ill. 2d 294, 310) nor did the circuit court find that defendant's apprehension as a suspect in the the armed robbery on May 4, 1982, tended to identify him as the armed robber on April 1, 1980. Further, the evidence regarding defendant's apprehension was not relevant as part of a "continuing narrative" of the original crime, since it clearly related to a separate, distinct, and disconnected crime. See People v. Marose (1957), 10 Ill. 2d 340, 343.

The People assert without elaboration numerous other grounds for admitting evidence relating to the May 4, 1982, armed robbery, including knowledge, intent, motive, opportunity and identity. Although we recognize that these are legitimate bases for admitting other-crimes evidence, we find no facts making these bases applicable to the May 4, 1982, incident.

The error in admitting evidence of the May 4, 1982, armed robbery does not require reversal. Although we noted in People v. Lindgren that "erroneous admission of evidence of other crimes carries a high risk of prejudice and ordinarily calls for reversal" (People v. Lindgren (1980), 79 Ill. 2d 129, 140), our Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)) states: "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." This doctrine may apply when the error itself was unlikely to have contaminated the jury. (People v. Butler (1974), 58 Ill. 2d 45, 48-49.) In Lindgren, the jury had heard an "extensive Discussion" of the collateral crime of arson, and we stated that "in such cases" the conviction could be affirmed "only if the record affirmatively shows that the error was not prejudicial." (Lindgren, 79 Ill. 2d at 141.) The record before us confirms that the testimony relating to defendant's 1982 arrest, albeit irrelevant, disclosed only the fact that police had apprehended defendant as a person matching the description of a suspect sought in connection with an armed robbery. There was no "extensive Discussion" of the collateral crime, and the strict result of Lindgren should not obtain here. (79 Ill. 2d at 141.) Further, the evidentiary ambiguities present in Lindgren (79 Ill. 2d at 141) are not present in this case, where there was positive and credible identification evidence from several witnesses implicating defendant in the murder of George Vrabel. Where it does not appear that Justice has been denied or that a finding of guilt resulted from an error, we will not reverse a defendant's conviction. (People v. Morehead (1970), 45 Ill. 2d 326, 332.) Therefore, for the aforementioned reasons, the admission of limited evidence of the May 4, 1982, robbery does not require a reversal of the defendant's conviction.

Defendant also objects (in his supplemental brief) that the jury was improperly instructed on the use and weight of the other-crimes evidence. He contends that the jury should have been specifically instructed to compare the characteristics of the April 1, 1980, and April 5, 1980, offenses and determine whether the offenses were sufficiently similar to permit a reciprocal inference of identity.

The instruction given pertinent to this objection is as follows:

"Evidence has been received that the defendant has been involved in offenses other than that charged in the indictment. This evidence has been received solely on the issue[s] of defendant's identification [and the manner in which he came to police attention in this case]. This evidence may be considered by you only for the limited purpose for which it was received." (Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981) (bracketed material added by the People).)

Defense counsel objected to the phrase "in which he came to police attention in this matter," offering as an alternative the phrases "when he was arrested," or "came into custody." Defendant did not object to the instruction as it pertained to the April 5, 1980, offense, and failed to raise the alleged instruction error in his motion for a new trial. This failure to further object to a jury instruction at trial or to include it in a motion for a new trial serves as a waiver of a right to claim on appeal that the instruction was erroneous. People v. Caballero (1984), 102 Ill. 2d 23, 41.

In raising this particular objection to the above-quoted jury instruction for the first time on appeal, defendant relies upon our Rule 451(c), which provides that "substantial defects are not waived by failure to make timely objections thereto if the interests of Justice require." (107 Ill. 2d R. 451(c).) He contends that the instruction given improperly assumed the probative value of the April 5, 1980, offense and thereby precluded the jury from determining the probative value of crucial evidence. However, the jury was instructed that they were to determine the weight to be given to the testimony of each witness. (Illinois Pattern Jury Instructions, Criminal, No. 1.02 (2d ed. 1981).) Viewing these instructions together, we find that the jury was properly instructed regarding the other-crimes evidence; there most certainly was not a substantial defect by which defendant was denied due process. The duty to evaluate the weight and credibility of the testimony of each witness includes the duty to evaluate the weight and credibility of the identification testimony. We agree with the People that the circuit court was "not required to give an instruction that would provide the jury with no more guidance than that available to them by application of common sense." See People v. McClellan (1978), 62 Ill. App. 3d 590, 595-96.

In evaluating defendant's contention regarding the jury instructions, we find inapposite Crane v. Kentucky (1986), 476 U.S. 683, 90 L. Ed. 2d 636, 106 S. Ct. 2142, upon which defendant relies. In Crane the trial court had found the defendant's confession voluntary, had admitted evidence of it, and then had erroneously precluded the defendant from explaining the circumstances surrounding it. The Crane trial court thus had withheld from the jury evidence which might have caused it to question the confession's probative value. The Supreme Court in Crane found that "the blanket exclusion of the proffered testimony about the circumstances of petitioner's confession deprived him of a fair trial." (476 U.S. at 690, 90 L. Ed. 2d at 645, 106 S. Ct. at 2146.) In contrast to Crane, defendant herein was neither precluded from introducing favorable evidence nor prevented from disputing or disproving unfavorable evidence. The jury heard the evidence of both offenses, and heard defense counsel's arguments that there was no credible evidence sufficient to connect defendant to either the April 1 or the April 5 shooting or to connect each shooting with the other.

Defendant next argues that the circuit court's limitation of defense counsel's examination of police officers on the motion to suppress identification evidence violated defendant's constitutional rights and requires a new suppression hearing, since counsel was attempting to establish the suggestiveness of the photographic identification procedures employed. Pursuant to a prosecution objection, the circuit court allegedly requested defense counsel to limit his questioning of the officers who had arranged a photographic identification to the procedures rather than the results of the identification, foreclosing the defense from showing an "utterly crucial" form of suggestiveness: the words used by the police as the photos were displayed.

Defendant misinterprets the record of the hearing on the motion to suppress the photographic identifications. During the hearing, defense counsel questioned the officer who had conducted the follow-up investigation, Detective Solecki, as follows:

"Q. [MR. McELLIGOTT, Assistant Public Defender]: Now, Officer, specifically as to defendant's Exhibit Number One, could you tell me exactly what you and the witness, starting with Thomas Fitzpatrick, talked about ...


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