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06/16/88 the People of the State of v. James Smith Et Al.

June 16, 1988





526 N.E.2d 849, 172 Ill. App. 3d 94, 122 Ill. Dec. 456 1988.IL.942

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


PRESIDING JUSTICE JIGANTI delivered the opinion of the court. LINN and McMORROW, JJ., concur.


The defendants, James Smith, Dexter Bailey, Earl Miller and Fred Williams, were convicted of several offenses arising from a home invasion and armed robbery which occurred on the South Side of Chicago on January 24, 1984. They were tried jointly; Bailey, Smith and Williams by jury and Miller by the court. Dexter Bailey was sentenced to 20 years on each of two counts of home invasion, 15 years for residential burglary, 15 years each on two counts of armed robbery and an extended term of 10 years for aggravated battery. James Smith and Earl Miller received sentences of 15 years on each of two counts of home invasion, 10 years for residential burglary, 10 years on each of two counts of armed robbery and five years for aggravated battery. Fred Williams was sentenced to 15 years on each home invasion count, 10 years for residential burglary and 10 years on each of two counts of armed robbery; Williams was acquitted of aggravated battery.

The defendants have raised the following issues on appeal: (1) Bailey, Smith and Williams contend that the trial court erred in denying their motions for severance; (2) Miller claims that his arrest, identification and statement to the police should have been suppressed on the grounds that they were the direct result of Bailey's illegal arrest; (3) Bailey and Smith contend that the trial court improperly limited cross-examination into the bias and motive to testify falsely of certain police officers; (4) Williams claims that the trial court erred in denying his motion for a directed verdict and that he was not proved guilty beyond a reasonable doubt; (5) Miller and Williams contend that they received ineffective assistance of counsel; (6) Bailey and Smith maintain that their sentences for home invasion were improper because the trial court placed home invasion in a "super X category," thus ignoring the classification set by the legislature and indicating that a minimum sentence would never be imposed; (7) Smith, Williams and Miller contend that their sentences were excessive in light of their potential for rehabilitation; and (8) the defendants contend that their convictions on two counts of home invasion and residential burglary violated the principle of "one act, one crime."

At approximately 9 p.m. on January 24, 1984, three men subsequently identified as Dexter Bailey, James Smith and Earl Miller broke into a house at 5521 South Damen Avenue in Chicago. The house was occupied by 54-year-old Sylvia Galuszynski and her 83-year-old mother, Isabelle Galuszynski. According to the State's theory at trial based upon the statement of Fred Williams, Williams also participated in the offense by remaining outside and acting as a lookout. During the course of the home invasion, Sylvia Galuszynski was threatened at gun point, Isabelle Galuszynski was beaten and several items, including cash, jewelry and a television set, were removed from the house.

Each of the defendants made a pretrial statement implicating himself in the crime as well as certain of the codefendants. The State informed the court prior to trial that it intended to introduce the statements at the joint trial as evidence against their respective makers. All four defendants made motions for severance on the grounds that their sixth amendment right to confront and cross-examine the witnesses against them would be violated if the nontestifying codefendants' statements were introduced at the joint trial. The trial court denied the motions based on its finding that the statements were interlocking and therefore admissible in a joint trial as long as the jury was properly instructed that each statement would be considered only against its maker.

Sylvia Galuszynski testified at trial that shortly after retiring for the night, she and her mother heard someone pounding on a basement window. Sylvia called the police and five minutes later heard the front-door doorbell ring. Believing that it was the police, Sylvia opened the door. However, upon seeing a young black man who was not in uniform, she slammed the door shut.

Sylvia then turned on the lights and went downstairs to check out the basement. She observed that the basement window was intact and nailed shut. As she walked up the stairs, the window was forced open and a man whom Sylvia identified as Dexter Bailey jumped into the basement armed with a gun. Bailey put his arm around Sylvia's neck, placed the gun to her head and threatened to kill her. He kept asking her who else was in the house. Two other men, later identified as James Smith and Earl Miller, entered through the basement window. Bailey motioned Smith and Miller to go upstairs, then followed, dragging Sylvia at gun point. They entered the kitchen, where Isabelle Galuszynski was seated in a rocking chair.

Bailey waived Smith and Miller toward the front of the house, then put the gun to Isabelle's head and threatened to kill her unless she told him where to find the money. Sylvia testified that the kitchen was well lit and that she had a very good opportunity to view the offenders. Bailey went into Isabelle's bedroom, found some jewelry and emptied out the dresser drawers. Bailey returned to the kitchen and again threatened the women, demanding more money. At that time, James Smith stuck his head into the kitchen, and Sylvia offered to give him money. She then gave him $7 in bills and $2 in quarters. Sylvia was able to observe Earl Miller in the living room near the television set.

Suddenly, Isabelle began running as fast as she could toward the front door. Bailey ran out of the bedroom, grabbed Isabelle by the neck and lifted her off the floor. He choked, kicked and beat Isabelle with a gun for several minutes, then threw her back down into the rocking chair. Bailey returned to Isabelle's bedroom and removed an envelope containing $2,000 in cash from a purse in the closet. Smith and Miller carried the television set through the kitchen and called to Bailey to leave. When Bailey went to the back door to talk to Smith and Miller, Sylvia pushed him out and locked the door. She then called her brother, who alerted the police. Sylvia testified that the entire incident lasted between 20 and 30 minutes.

On the following day, Sylvia identified Bailey's picture from a photographic array and a few days later identified him in a lineup. She also made lineup identifications of Smith and Miller and in-court identifications of all three of the offenders who entered her home.

On January 30, 1984, police officers observed Dexter Bailey at 57th and Indiana. When Bailey saw them, he ran and the officers gave chase. According to Officer Thome's testimony, an unmarked police car which was involved in the chase pulled up and stopped in front of Bailey, causing Bailey to run into the car. While at the police station, Bailey gave police the names of James Smith and Earl Miller, then made a statement implicating himself as well as Smith and Miller in the crime. This statement was introduced at the joint trial as evidence against Bailey. In order to avoid prejudice to the codefendants, however, the statement was redacted to eliminate the name of James Smith. The method of redaction was to insert a blank line wherever James Smith's name appeared in the written statement. When reading the statement to the jury, the assistant State's Attorney used the term "white out" wherever a blank line appeared. It is clear, however, that the jury was earlier informed through the testimony of a police officer that Bailey had implicated Smith and Miller. On cross-examination of the officer, Fred Williams' attorney elicited testimony emphasizing that Bailey's statement implicated Smith and Miller, and not Williams. Miller's name was not redacted because he had chosen a bench trial. The jury could only conclude, then, that the blank lines stood for James Smith. Because redaction under the circumstances was clearly ineffectual, it is necessary to consider Bailey's unredacted statement in determining its impact upon his codefendants. *fn1

Bailey stated that he went to Earl Miller's house at 6 p.m. on January 24, 1984. Smith joined them approximately two hours later, and Bailey showed Miller a nickel-plated .22 caliber derringer with a pearl handle. Bailey then said that he knew where two old ladies lived and he, Smith and Miller went to 5521 South Damen to break into the house. Smith and Bailey went to the rear basement window. Miller stayed in front, then came to the rear. Smith forced open the basement window and Bailey saw an old lady come downstairs. Bailey, armed with a gun, jumped through the window and grabbed the old lady. They took her upstairs and found another old lady in the house. Smith and Bailey asked the first lady for money. She gave them $7, then got $25 from her mother and gave that to the men. The older lady went toward the front door and Smith and Bailey grabbed her. Bailey took her back to the kitchen, then he and Smith searched the house. Bailey took a gold ring and a watch. Earl Miller took a color television and put it in the back. They left the house because Miller had seen an old man and they heard a dog barking. They had been in the house for 20 to 25 minutes. They walked back to Miller's house, taking turns carrying the television set.

At trial, Bailey presented an alibi defense through his own testimony and that of his girlfriend, Michelle Chapman. Bailey stated that he ran when he saw the police officers because he had outstanding traffic warrants and a pending marijuana case. According to Bailey, the police car was moving when it hit him, and he was injured and in pain when questioned at the police station. He testified that the police beat him and coerced him into signing the statement, which he could not read.

Based on the information given to them by Bailey, the police arrested Earl Miller and James Smith. Smith made a statement implicating himself, Dexter Bailey and Earl Miller. Smith's statement was redacted to omit the name of Dexter Bailey, leaving a blank line in place of Bailey's name. However, the jury was earlier informed through a police officer's testimony that James Smith had implicated Dexter Bailey and Earl Miller, but not Fred ...

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