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04/22/88 the People of the State of v. Kenneth Cole

April 22, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KENNETH COLE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

524 N.E.2d 926, 170 Ill. App. 3d 912, 120 Ill. Dec. 744 1988.IL.583

Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Between 12:15 and 12:20 p.m. on October 21, 1983, Karen Matthews was shot and killed while in the lot of an Amoco gas station located on the northwest corner of the intersection at 75th Street and Stoney Island Avenue in the south side of Chicago. Following a jury trial defendant Kenneth Cole, the victim's boyfriend, was found guilty of the murder and was sentenced to a prison term of 28 years. On appeal, defendant Cole contends: (1) no probable cause existed to support defendant's arrest; (2) defendant's guilt was not proven beyond a reasonable doubt at trial; (3) the court below erred in qualifying a State's witness as an expert and permitted improper opinion testimony pertaining to the results of a gunshot residue test to determine whether defendant had fired a gun shortly before his arrest; (4) the unavailability of a subpoenaed defense witness prejudiced defendant's case; and (5) remarks made by the assistant State's Attorney in closing argument were improper.

We affirm.

The following, adduced at trial, is pertinent to our Disposition.

Linda Eichelberger, Lovey Copland, and Bonnie Johnson were in an automobile, facing eastbound on 75th Street, waiting at the intersection of 75th Street and Stoney Island Avenue for the traffic light to change at approximately 12:15 p.m. on October 21, 1983. Eichelberger and Johnson both testified that, as they were waiting to proceed, they heard a gunshot and immediately turned to their left to see, directly across 75th Street at a distance of 20 to 25 feet, the victim screaming that she had been shot. The victim was standing next to a blue and white Cadillac Seville which was situated in the lot of the Amoco station. The victim was standing within the area created by the open right front passenger door of the vehicle. As Eichelberger and Johnson watched, the victim collapsed, the driver reached over to close the passenger door, backed the car up, and proceeded down an alley behind the Amoco station. Both witnesses testified that they saw the full face of the driver and stated that he wore a white or light-colored hat. Eichelberger made a courtroom identification of defendant as the driver of the vehicle. Eichelberger also testified that defendant's hat, which was admitted into evidence, was the one she had seen defendant wearing on the day of the murder even though, on cross-examination, she admitted that she did not notice that the hat had any yellow (embroidery) on it, or had the word "captain" printed on it.

A stipulation was admitted into evidence on the last day of the trial which established that, following the murder, Detective Henry Sigler conducted a short interview with Eichelberger during which time she did not describe the offender by height or weight and neglected to describe any hat.

Dawn Morgan, the cashier on duty at the Amoco station that morning, also testified to observing the same events. Morgan similarly made a courtroom identification of defendant as the driver of the vehicle. Morgan testified she had seen the defendant in the Amoco station with the same Cadillac on two or three occasions prior to the day of the murder. She stated that on the day of the murder, she saw defendant in the automobile and saw that he was wearing a white baseball cap. Morgan testified that during the course of events in the Amoco lot that morning, she never lost sight of defendant. On the following day, she identified defendant Cole as the assailant out of a police lineup. At trial, Morgan was shown a photograph of the lineup and indicated defendant was the individual she had earlier identified.

Arthur Stovall, an employee of a Popeye's Chicken fast-food restaurant located on Stoney Island Avenue beside the Amoco station, testified that sometime shortly after noon on October 21, 1983, he was walking westward, diagonally, across the lot of the Amoco station on his way to a hardware store nearby. He noticed the blue and white Cadillac parked beside a pay telephone. The victim was talking on the telephone. The automobile was running. As he neared where the victim was standing, he began to exchange greetings with the victim. Stovall testified that as he attempted to continue the conversation, the victim, facing 75th Street, appeared to become "kind of scared." Stovall turned to see a man he identified as the defendant coming toward the victim from across 75th Street. The defendant was wearing a white baseball cap. Stovall testified that the defendant told the victim to get into the car.

Stovall stated that as he resumed his walk, he heard a gunshot, turned back towards the direction of the sound, and saw defendant, still wearing the white cap, back the Cadillac up and "shoot down the alley." On the following day Stovall also identified defendant Cole as the assailant out of a police lineup, and also, at trial, identified defendant from a photograph of that lineup. On cross-examination, Stovall admitted that in 1978 he had been convicted of armed robbery.

With regard to Stovall's testimony, Chicago police department detective Charles Salvatore was permitted to later testify that in the late afternoon on the day of the murder, he had telephoned Stovall about the incident. Detective Salvatore stated that Stovall, at that time, told Salvatore over the telephone that the assailant had gotten out of a taxi cab. Stovall had described the assailant as a light-skinned black male, 5 feet 7 inches tall, weighing 135 pounds, and having curly hair, a description which did not fit that of defendant. Detective Salvatore also stated that Stovall had told him that the assailant had not worn a hat.

In his own testimony, Stovall denied giving such a description.

Fannie Glenn, another eyewitness to the murder, testified on behalf of defendant Cole to a considerably different set of facts than the previous eyewitnesses. Glenn stated that at approximately 12:15 p.m. on the day of the murder, she was walking west across Stoney Island Avenue with her granddaughter when they were almost struck by a speeding car containing three individuals: two males and a female. She testified that the car turned on 75th Street, made a U-turn around the median, and "went up on the side of the filling station." While the car was still in motion, she heard a gunshot. She next saw the victim fall out of the car and scream. Glenn testified that the driver of the car had a darker complexion than the defendant.

On cross-examination Glenn was unable to describe the automobile other than to say it was dark colored, either black or navy blue. Glenn further testified that the police at the scene had only allowed her to tell "a little" of what she had witnessed, but she admitted that she never called the police afterward regarding the incident. She also admitted that later, in November of 1983, when police did contact her for the purpose of showing her photographs of possible suspects, she told police over the telephone that she could not identify anyone.

Three alibi witnesses also testified on behalf of the defendant.

The defendant's mother, Mary Cole, testified that she placed a call to defendant from a pay telephone at her beauty salon at 12 noon on the day of the murder and spoke with defendant about a family event to take place that night.

Carolyn Smith, a friend of defendant's and an acquaintance of defendant's family, testified that between 1 and 1:15 p.m. on the day of the murder, the defendant was in a Foremost Liquor store at 1529 Hyde Park Avenue, where Smith was employed as a lottery ticket cashier.

Seneca Boxton, the victim's roommate, testified that the last time she saw the victim was on October 20, 1983, in the evening preceding the day of the murder, when the victim left their apartment to spend the night with her boyfriend, defendant Cole. Boxton testified that, later that evening, she also left the apartment to spend the night with a boyfriend, John Washington, at a hotel. Boxton testified that between 12:10 and 12:15 p.m. on the day of the murder, she called defendant from the hotel room's telephone in an attempt to locate the victim. Boxton stated that she was certain of the approximate time because she had been watching a particular television soap opera which had begun at 12 noon. Boxton stated she talked to defendant for three to four minutes.

On cross-examination, Boxton admitted that she was a friend of the defendant's and had seen the defendant twice since the victim was murdered. She also testified that, even though she first tried to locate the victim at 9 a.m. on the morning of the day of the murder, her next attempt to locate the victim, at defendant's apartment, was not until 12 noon.

Over defense objections, Mary Grobarcik, a Chicago police department chemist, was qualified by the trial court as an expert and was allowed to give opinion testimony concerning her analysis of a gunshot residue test performed on sample swabbings taken from defendant's hands shortly after defendant was arrested in the afternoon following the murder. In her opinion, the analysis showed that defendant Cole had fired a handgun within four to six hours of his arrest.

The subject matter of Grobarcik's qualifications, and her testimony, as well as that of Edward Rudzitis, an expert called by the defense to rebut her testimony, is more fully set forth below in our Discussion relative to Disposition on admissibility of the results of the test analysis. I

We first address whether probable cause existed to support defendant's arrest.

The following testimony, adduced during a pretrial hearing on defendant's motion to quash his arrest and to suppress evidence, is ...


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