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06/23/89 the People of the State of v. Marlon Pendelton

June 23, 1989





542 N.E.2d 386, 185 Ill. App. 3d 768, 134 Ill. Dec. 207 1989.IL.979

Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.


JUSTICE QUINLAN delivered the opinion of the court. McNAMARA and LaPORTA, JJ., concur.


The defendant, Marlon Pendelton, was tried by a jury in the circuit court of Cook County on the charge of unlawful use of a weapon by a felon. The jury found the defendant guilty of that charge and the defendant was sentenced to three years' incarceration. Defendant appeals his conviction. We affirm.

The relevant testimony at defendant's trial was as follows. As its first witness, the prosecution presented Officer Richard Johnson, who testified that at approximately 12:30 a.m. on February 28, 1985, he and his partner, Officer William Brantley, responded to a call of a man with a gun on 75th and Exchange in Chicago, Illinois. When they arrived, Officer Johnson said he saw a group of people looking across 75th Street at the defendant, who was standing on the opposite corner. When Johnson approached the defendant, the defendant started running and Johnson ran after him. During the chase, which lasted less than a minute, Johnson, who was about 10 to 15 feet behind the defendant, saw the defendant pull an object out from his pocket, and heard what sounded like a gunshot. At that point, Johnson pulled out his gun, and ordered the defendant to stop, but the defendant continued to run. Defendant then dropped the object on the ground and Johnson heard a clicking noise as the object hit the ground. Johnson chased the defendant another 10 feet or so and apprehended him. When Johnson reached the defendant, he arrested him and then returned to retrieve the object that the defendant had dropped. The object that Officer Johnson recovered was a .22 caliber revolver which contained five live cartridges and one spent cartridge.

Johnson also testified that while he was chasing the defendant, Officer Brantley had driven the squad car down the street to cut off the defendant; but by the time Brantley arrived, Johnson had already apprehended the defendant and recovered the gun. Johnson identified the gun in court and noted that there was a slight break on the barrel and a break in the plastic on the edge of the handle as he had observed when he recovered it.

On cross-examination, Johnson admitted that there was a discrepancy between his testimony and the arrest report that was prepared and signed by Officer Brantley on his behalf. Contrary to Johnson's direct testimony, the arrest report stated, "Note: The weapon was recovered from the subject after a custodial search to wit a .22 cal. revolver . . .." Johnson testified that this statement was incorrect and had been added after he reviewed the report. On redirect examination, Johnson testified that he had personally prepared the incident report for the case and that the incident report stated that the gun was thrown to the ground by the defendant. The State then presented a stipulation that the defendant had a prior felony conviction for armed robbery in 1977.

The defendant presented his own testimony, the testimony of his girlfriend Antoinette Ferguson, and the testimony of Ferguson's girlfriend Sade Armstrong. All of the defense witnesses testified that Ferguson's ex-boyfriend, George, approached defendant, argued with him, and then pulled a gun on the defendant and threatened to kill him. Defendant ran into a restaurant to call the police, they said, and George followed. Defendant then ran out of the restaurant with George in pursuit. Armstrong stated that when the police arrived, they threw defendant to the ground, searched him and asked him where the gun was. She said that she tried to tell the police officers that the defendant did not have the gun, but they refused to listen. Armstrong further testified that she heard a voice behind her point out the gun to the police, and, she said, she believed that the voice she heard belonged to George, since he was the only person standing behind her.

Cross-examination of the defense witnesses revealed that Ferguson, defendant's girlfriend, had been convicted of forgery in 1982 and robbery in 1986. In addition, Armstrong, Ferguson's friend, never came forward as a witness until the time of trial, approximately 1 1/2 years later. The State called Officer Johnson in rebuttal, and he stated that he had not seen anyone chasing defendant, that no one, including the defendant, had said anything about defendant being chased, and that no one had pointed out the gun on the ground to him. In addition, the State presented the evidence of defendant's prior conviction again, this time for the purpose of rebutting or impeaching the defendant's credibility.

The jury found the defendant guilty, and the jurors were then dismissed. Later that same day, defense counsel informed the court that on the inside latch on the lock of the door to the men's room, used by the male jurors, the word "guilty" was written in red ink, and in capital letters on the side of the latch. The court then swore in the court clerk who had found the lettering, as well as the deputy who had also seen the latch. The court found that the word had been there at least four days and that the letters were about one-quarter of an inch high. The defendant moved to vacate the verdict, but the court denied the motion and sentenced the defendant to a three-year term of imprisonment.

Subsequently, the defendant moved for a new trial based on this graffiti which was on the latch and presented four photographs of the latch. The Judge then questioned defense counsel, who saw the word when the photos were taken, and the cleaning lady who cleaned the word off the latch. The Judge ascertained that the latch was about 40 inches above the floor and 2 1/2 inches from the door frame. When locked, the latch was in a horizontal position, and the graffiti faced down to the ground, and when unlocked, the latch was in a vertical position, and the graffiti faced to the side. The latch was brass in color and was 1 1/2 inches long and three-quarters of an inch wide. Thereafter, the court denied defendant's motion.

Defendant raises four issues on appeal: (1) whether the trial court erred when it denied defendant's motion for a new trial based on the fact that the word "guilty" was written on the latch of the lock of the men's room used by the male jurors; (2) whether the trial court erred when it allowed the State to present evidence of Officer Johnson's prior consistent statement; (3) whether the trial court erred when it allowed the State to present evidence of ...

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