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07/26/88 the People of the State of v. Gary Davis

July 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY DAVIS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

527 N.E.2d 552, 173 Ill. App. 3d 300, 123 Ill. Dec. 89 1988.IL.1142

Appeal from the Circuit Court of Cook County; the Hon. John J. Hourihane, Judge, presiding.

APPELLATE Judges:

JUSTICE EGAN delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

On October 18, 1984, at approximately 12:30 a.m., 64-year-old Moses Willis was in his second-story apartment at 4236 Cottage Grove Avenue in Chicago. Also present were his sister, Velma Harden, his niece, Grace Willis, and her children. The defendant and Charles Jones kicked in the door. The defendant struck Moses Willis with a gun and demanded money from him. He told Grace Willis to be quiet or he would kill her and her baby. Moses Willis was beaten at least twice. He went out the window of his apartment and fell to his death. The autopsy disclosed that he died as a result of multiple injuries due to the fall with arteriosclerosis as a contributing factor. Grace Willis picked out the defendant's picture. He was arrested and confessed that he and Carlton Jones had kicked the door in; that he had struck Moses Willis; that Carlton Jones had a gun; that they got $5 or $6 from Moses Willis; that he held Moses Willis down while Jones searched the place for more money; that Moses Willis eventually got loose and jumped through the window; and he and Jones fled.

He and Jones were indicted jointly; but Jones pleaded guilty pursuant to an agreement with the State.

The defendant first contends that his convictions of armed robbery and home invasion should be reversed for lack of proof of the elements of those crimes independent of his confession. That being so, he argues, the murder conviction must also be reversed because that conviction was based on a death which allegedly occurred during the commission of a felony.

We note first that this argument was not raised in the post-trial motion, and, therefore, the State contends, any error was waived. The defendant answers that the waiver rule is not applicable when the error claimed is failure to prove a material allegation of the indictment, citing People v. Friesland (1985), 109 Ill. 2d 369, 488 N.E.2d 261. We agree with the defendant. If the absence of proof of a material allegation may not be waived in a post-trial motion, a fortiori, the absence of proof of the corpus delicti may not be waived, and we will consider that assignment of error. See People v. Willingham (1981), 92 Ill. App. 3d 1101, 416 N.E.2d 803, rev'd on other grounds (1982), 89 Ill. 2d 352, 432 N.E.2d 861.

The elements of home invasion are set out in section 12-11 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12-11), which provides that a person commits home invasion when, without authority, he knowingly enters the dwelling place of another when he knows or has reason to know that a person is present and while armed with a dangerous weapon uses force or threatens force upon any person within the dwelling or intentionally causes any injury to any person within the dwelling. The elements of armed robbery are set out in section 18-1 (Ill. Rev. Stat. 1985, ch. 38, par. 18-1), which provides that a person commits armed robbery when he takes property from the person or presence of another by force or threatening the imminent use of force while armed with a dangerous weapon.

The defendant's argument boils down to the contention that there is no evidence apart from his confession that any property was taken; therefore, no proof of robbery; and no evidence apart from the confession that entry was not made with permission; therefore, no proof of home invasion.

The fundamental rule is that every element of the corpus delicti need not be established beyond a reasonable doubt by evidence independent of a confession. The independent evidence need only tend to prove that an offense occurred and corroborate the facts contained in the confession. If the two requirements are satisfied, the independent evidence and the confession are sufficient to establish the corpus delicti. People v. Stepteau (1986), 142 Ill. App. 3d 400, 491 N.E.2d 851. See also People v. Perfecto (1962), 26 Ill. 2d 228, 186 N.E.2d 258.

Grace Willis, the deceased's niece, awoke because she heard her Uncle Moses screaming, "Get your hands off me, leave me alone." She saw the defendant in front of her uncle and another man behind him. Her uncle was pushed into her bedroom. The defendant pointed a gun at her and told her to lie down and that no one would get hurt. He struck her uncle in the face with his gun and repeatedly told him to give him money. The deceased said that he only had $2 and that the defendant could have it. She guessed that he took the money. After her uncle asked if he could put something on his face, which was bleeding from the blows, the defendant again started hitting him. When she told the defendant to stop hitting her uncle, the defendant ordered her to shut up or he would kill her and her baby. The defendant ordered her uncle to lie down on the floor, but he refused. Her uncle began to struggle with the defendant and both bumped into the refrigerator. She heard no sound for a moment, and then she saw her uncle sit on the bed. His breathing sounded as though he were having a heart attack. At that point he went to the window, opened it and went through it. Grace testified that she did not know if her uncle went out the window on his own or if he was pushed out.

The deceased's sister, Velma Harden, testified that she was awakened about 12:30 by noises in the bedroom. She heard a man demanding money from her brother and saw him struggling with him. She could not identify the man because she had a problem with her eyesight. He threatened to blow her brains out if she raised her head.

Annetta Allen, Grace Willis' daughter, testified that she was awakened by voices and hitting noises coming from her Aunt Velma's bedroom. A man's voice was demanding money from her Uncle Moses.

The independent evidence shows that the men were strangers to the people who testified, that one of them was armed with a gun, that they used force and inflicted bodily injury on Moses Willis, that they demanded money, that Moses Willis offered them $2 and that Grace Willis guessed they took it. In our judgment the evidence independent of the defendant's confession satisfies the requirement that it tend to prove that the offenses of robbery and home invasion occurred. In fact, we are convinced that the elements of home invasion have been established beyond a reasonable doubt independent of the defendant's confession. We are not persuaded to hold otherwise because, as the defendant argues, Moses Willis may have let the two men into the house. It is not reasonable that he did, but if he did, it is immaterial. The cumulative independent evidence shows that regardless of how the defendant and codefendant gained access to the Willis home, they exceeded any possible original authority granted to them when they terrorized Willis and his family. People v. Strong (1984), 129 Ill. App. 3d 427, 472 N.E.2d 1152; People v. Hudson (1983), 113 Ill. App. 3d 1041, 448 N.E.2d 178.

In his confession, the defendant said that it was Jones' plan to rob Willis, that Jones, whom he identified as "T," kicked the door down. He believed that "T" had a gun. While he was holding the deceased, "T" got about $5 or $6 from his pockets. They continued struggling with the deceased. He and "T" slapped and pushed the deceased around. They kept asking him for more money, but he kept saying he had none. We Judge that the independent evidence and the confession taken together established the corpus delicti of armed robbery.

The defendant next contends that the trial court erred by permitting the book from which Grace Willis identified his picture to go to the jury. During the trial the book was used as an exhibit during the testimony of Grace Willis and Detective Popovitz. At the close of the evidence the book was offered into evidence, and the defendant objected to its going to the jury. The court said it would admit the book into evidence but would not send it to the jury. The court suggested that the defendant's photo be taken out of the book and sent to the jury alone, but the prosecutor said that this would not fairly represent the exhibit and indicated he would rather not send the single photo back without the book unless the jury asked for it. During deliberations, the jury requested to see the photo book, and the court granted the jury's request over the defendant's objection. The defendant argues that this was prejudicial error because it suggested to the jury that the defendant had been previously involved in crimes.

Grace Willis was the only person who identified the defendant in court; and her testimony on identification was crucial. She testified that she had looked through five or six books containing many pictures, and she identified the defendant's picture. Officer Richard Popovitz testified that she looked at 200 or more pictures. He said there was no uncertainty about the identification; but he said in his report that her identification was "tentative." He explained that it was the usual practice to put down such an identification as "tentative" where a person identified someone from a photograph, unless that person knew the individual he was identifying.

Later Grace Willis viewed two lineups. She identified the defendant from one of them. She testified that she picked Davis out right away. She denied saying at the lineup that he looked like the man but that she could not be positive.

Detective Thomas Kelly was called by the defendant and testified that he conducted a lineup which Grace Willis viewed. He said that Grace Willis said that it looked like the man but she could not be positive. She was not any more positive after he let everyone in the lineup speak. No picture was taken of the lineup because it was ...


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