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February 2, 1994


Appeal from the Circuit Court of La Salle County, Illinois. No. 91-CF-44. Honorable George C. Hupp Judge, Presiding

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Defendant Raymond Smith was convicted of two counts of armed armed robbery and was sentenced to a term of life imprisonment under the Habitual Criminal Act. (Ill. Rev. Stat. 1991, ch. 38, par. 33B-1.) On appeal, defendant contends: (1) that he was denied a fair trial because his cross-examination of a witness was improperly limited and because the trial court erred in permitting the State to present hearsay evidence; (2) that he was denied a fair trial by acts of prosecutorial misconduct during closing argument; and (3) that the Habitual Criminal Act is unconstitutional. We reverse and remand.

At the jury trial on March 2, 1992, Ruth Teter testified that she was invited to be a Judge in the Miss Ottawa beauty pageant in Ottawa, Illinois. There was a competition on Saturday evening, and on Sunday morning, July 29, 1990, Teter and another Judge, Lola Hacker, went to the motel coffee shop and had breakfast. At 8:45 a.m. they started to go back to their adjoining rooms. As they were walking down the hall, a man walked toward them, then stopped, acted as if he had forgotten something, and went in the opposite direction. Teter and Hacker went to their adjoining rooms. As Teter was in her room she looked into Hacker's room through a door that joined them. Hacker pointed behind her and Teter turned and saw a man bending over her bag which was sitting on the closet floor. She asked the man what he was doing and he shut the door and displayed a handgun. The man told Teter that he wanted her money. Teter thought that he was the same man that had been in the hall. She got her wallet from the bed and the man took $75 from the wallet. The man also took money from Hacker's wallet. The man told Teter and Hacker to go into the bathroom and lock the door. After some time, the women came out of the bathroom and called the police. Teter identified the defendant as the man who had robbed her. When asked how sure she was about her identification she replied, "I'm positive. Absolutely."

In February of 1991 investigator Greg Elliott showed Teter six photographs from which she selected the defendant's photograph as the man who had robbed her. Teter testified that at the time of the armed robbery the defendant was clean shaven while at the time of trial he had a beard. In addition, defendant appeared to be heavier at trial than when he had committed the robbery. Teter admitted that she had described the man who robbed her to police as being about 30 years old and weighing 160 pounds. She also admitted that she told the police the man was clean shaven and had a thin face. The man had been wearing a baseball cap and wrap-around sunglasses. Teter did not notice any tattoos on the man's hands, nor did she see a cast on his hand. Teter agreed that she told police that she had chosen the defendant's photograph because of the shape of the lower part of the face, the lines around the nose and mouth and the fact that the face was thin.

Lola Hacker testified that she was also a pageant Judge on July 29, 1990. She and Ruth Teter were staying at the Ottawa Inn in adjoining rooms. After breakfast they went back to their rooms and passed a man in a hallway. After she got in her room, Hacker looked through the adjoining door and saw a man going through Teter's bag. Teter asked the man what he was doing, and he drew a gun and closed the door. He told them he wanted their money and he took money from Teter and $65 from Hacker. The man told them to go in the bathroom and lock the door. After some time, the women came out and the police were called. Hacker identified the defendant in court as the robber, and she stated that she was absolutely sure of her identification. Hacker admitted, however, that when she was shown a group of photographs in February of 1991, she did not select defendant's photograph, but instead identified a different person as the man who had robbed her. Hacker said that she should not have chosen any photograph at the photographic array because she "wasn't sure enough". She thought the photographs were too small for her to be sure. Nevertheless, she did pick photograph number four as being the photograph of the robber. Photograph number three was the photograph of the defendant, and in court Hacker identified photograph three as the photograph of the robber. Hacker believed that at the time of the robbery the defendant was clean shaven and thinner than he was at trial. The description she gave the police was of a black male, 160 pounds, in his thirties. She did not recall seeing any tattoos. She believed the man had a thin face and was a thin man.

Greg Elliott, an investigator for the Ottawa Police Department, testified that he investigated the armed robbery at the Ottawa Inn. Various items were sent to the crime lab for fingerprint processing. Based on a report from the crime lab and the Automated Fingerprint Identification System (AFIS), Elliott focused his investigation on the defendant. Elliott obtained a photograph of defendant, put that photograph in a photographic array, and met the complaining witnesses at Ruth Teter's house in Elgin. Teter picked the defendant's photograph, but Lola Hacker picked another man. People's Exhibit 1, which was photograph three in the array, was taken August 27, 1990, less than one month after the robbery. It showed that the defendant was wearing a goatee and a mustache at that time. On October 6, 1991, the defendant weighed 210 pounds and was five feet, ten inches tall.

Elliott testified that at the time of the photographic array, Hacker told him that she was not sure if she could identify the robber from the photographs, because all she could distinctly remember was his height and his voice. Hacker told Elliott that she had picked photograph number four, that of a man named Armen Moore, because of the shape of his mouth and his face. Armen Moore was about 30 years old, while the defendant was 40 years old in July of 1990.

Mary McCarthy, a fingerprint examiner for the Illinois State Police, testified that she found a latent fingerprint on a patent leather purse taken from the robbery scene. She sent the fingerprint to the AFIS computer identification system, and it returned the defendant's name as a possible match. McCarthy compared the fingerprint on the purse to the defendant's fingerprints and, in her opinion, they were the same. McCarthy was then asked by the prosecutor, "Did you have your Conclusion checked?" She answered, "Yes. My identification was verified by another fingerprint examiner." Defense counsel objected and asked that the answer be stricken "unless that person testifies." The objection was overruled. The witness then testified that Lauren Wicevic was the other fingerprint examiner who checked the accuracy of her work. Defense counsel's hearsay objection was overruled.

After the State rested its case, the defendant called Officer William Licht, a patrolman for the Ottawa Police Department. Officer Licht testified that Teter and Hacker were very upset when he arrived on the scene to investigate the armed robbery. They agreed that the robber was a black male about 30 years old, five feet, nine inches tall, 160 pounds, with black hair and wearing sunglasses.

Bernard Young, the defendant's brother, testified that on June 29, 1990, the defendant was living with their mother, Bessie Young, on Washington Boulevard in Chicago. There was to be a barbecue that afternoon, and Young had agreed to fix a car belonging to another brother, Doug Young. Bernard Young got to his mother's house between 8:30 and 9 a.m. When he got there, his mother, his father, Doug and the defendant were all there. In addition, James Brown, Gerald Stacey and a few other people were there. They worked together to put a new transmission in Doug's car.

Bernard Young further testified that his mother's house is approximately 90 miles from Ottawa. Young remembered the date because his wife's birthday was ten days after that day, and a family reunion was scheduled one day after his wife's birthday. According to Young, in July of 1990 the defendant weighed 210 pounds and had a goatee and a mustache just like he was wearing at trial, and he had had it for at least 15 years. In addition, defendant had broken his left hand and was wearing a cast on that day. Defendant also has a tattoo on his right hand which says, "love".

Bessie Young, the defendant's mother, testified that on July 29, 1990, the defendant was living at her home in Chicago. There was a family reunion set for the first Saturday in August, so the last Sunday in July was a day for lots of family to start gathering around. She woke the defendant up at 6 a.m. and saw him again near the garage at 9 a.m. When she returned from church around 1 p.m. the defendant was still there, working on a car. Between two and three dozen people were present that day at her home, including five of the defendant's sisters and their families. According to Bessie Young, the defendant has had a mustache since he ...

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