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08/07/97 PEOPLE STATE ILLINOIS v. JOSEPH MILLER

August 7, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSEPH MILLER, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE VINCENT BENTIVENGA, JUDGE PRESIDING.

Released for Publication September 11, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Cerda, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

At some point in almost every criminal trial a prosecution witness will be asked to look around the courtroom and determine whether the perpetrator of the crime is present. If and when the witness points to the defendant, an important part of the State's case falls into place. The record reflects the identification. The prosecutor can argue the force of a courtroom identification.

In the case before us, the roles were reversed. The defense asked that a defense witness be allowed the opportunity to identify the State's key witness. The trial judge refused the request. We find that refusal deprived the defendant of a fair opportunity to present his defense. We reverse his conviction for aggravated battery and remand the cause for a new trial.

FACTS

Trial began with jury selection on June 27, 1995. Evidence was heard on June 28 and 29, 1995. The State produced three witnesses.

The complainant, Robert McGee, testified that he owned his own construction company. On September 18, 1993, McGee said, he went to a bar called Frank's Place on Howard Street in Chicago, to meet with some friends. At about 10:20 p.m., he left the bar alone. As he walked down the street he was approached by a large black woman who asked him if he wanted a "date." McGee said he declined the offer and walked away. As he turned the corner to get to where his car was parked, however, he was attacked from behind. A man, later identified as Miller, grabbed the neck of McGee's T-shirt, yanked him, and then pushed him to the ground. McGee testified that he lay flat on the ground on his stomach while Miller held him down by pressing a knee into McGee's back. While kneeling on his back, Miller searched McGee's pants pockets and took $60 in cash. McGee said he had a small bruise on his back after the encounter. The State showed pictures of McGee's back, depicting the bruise.

When Miller released him, said McGee, Miller casually walked away. It was because of this casualness that McGee became incensed. He decided to follow his attacker.

McGee said he saw Miller meet up with the woman who had propositioned him earlier that evening. Miller and the woman had a "physical exchange," McGee said, though he could not see what, if anything, happened between them.

When Miller and the woman came to Sheridan Road, they separated. McGee, who had been darting behind bushes and cars to keep out of sight, saw a patrol car traveling along Sheridan Road. He flagged it down. He explained to the officer what had happened and then got into the squad car. They patrolled the area until they saw Miller walking along Howard Street.

Officer Atkinson, the police officer in the squad car that McGee hailed, testified that she stopped the car after McGee saw Miller on the street and pointed him out as his attacker. When she approached Miller, he said, "I am a Kung Fu master. I'll snap you in two." Miller was loud and threatening, so she pulled out her service revolver and called for assistance. Two additional officers arrived on the scene. Miller did not try to escape, but did not cooperate with the officers as they tried to arrest him and place him in the squad car.

After Miller was arrested, Officer Atkinson said, she patrolled the area in search of the woman. Officer Atkinson said she was looking for a large, black woman in a purple top but did not see anyone who fit that description.

At trial, while Officer Atkinson was testifying, Miller became extremely agitated. He called the officer a "liar" and a "bitch" and refused to calm down. Miller asked to be taken out of the courtroom. After a recess, Miller refused to come back into the courtroom for the conclusion of the trial.

Trial was moved to another courtroom that was equipped with an audio system that allowed Miller to hear the testimony while he remained in an adjoining cell.

Officer Minogue, one of the officers who responded to Officer Atkinson's call for assistance, was the last State witness. It was stipulated that he would identify Miller as the man he arrested on September 18, 1993, on Howard Street.

Officer Minogue testified Miller appeared very angry when he was arrested. He was making wild hand gestures, shouting, and talking in a threatening manner. Miller did not resist arrest, but "stiffened" when they tried to handcuff him. ...


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