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People v. Smith

October 08, 1998


The opinion of the court was delivered by: Justice Wolfson


JUSTICE WOLFSON delivered the opinion of the court:

After the State's only eyewitness to the home invasion was questioned by the lawyers, the Judge in this bench trial asked him questions about his ability to see without his glasses. Then the Judge conducted a brief courtroom experiment. Minutes later, the Judge found the defendant guilty.

The issue on appeal is whether, under the circumstances, the Judge committed reversible error. We find he did not and we affirm the defendant's conviction and sentence.


Defendant Benjamin Smith (Smith) was charged with home invasion and armed violence in connection with events which occurred on September 27, 1996. On August 15, 1997, Smith was tried before the bench. The only eyewitness to the crimes, 74-year-old Charles Willis, testified. He was the only witness to appear at the trial.

Willis said he lived alone in a first-floor apartment at 7247 South Harvard. On the evening of September 27, 1996, he was roused from his bed at about 9 p.m., when his doorbell rang. When he opened the door, two men pushed their way into the apartment. Willis made an in-court identification of Smith as one of those two men.

When he opened the door, Willis said, Smith was standing in front of the second man, whom Willis described as tall. This taller man was holding a gun, which he pointed at Willis' forehead. Willis said the taller man pushed Smith through the door, demanded money, and threatened to kill Willis if he didn't do as he was told.

Willis said he walked to his bedroom, followed by the two men. There he retrieved a $20 bill from a shoe and gave it to the taller man with the gun. The taller man then reached into the shoe and pulled out a second $20 bill. After this transaction, the taller man turned over the gun to Smith, who then pointed the gun at the back of Willis' head and told him to lie face down across the bed. Smith also told Willis to close his eyes.

While Willis remained on the bed, with Smith holding a gun to his head, he could hear the taller man in the kitchen, rifling through the freezer. After a short time, Smith left the bedroom. Willis got up from the bed and looked out through his bedroom door into the dining room. He saw Smith take a shaving kit off the dining room table as Smith made his way to the front door. Willis said the shaving kit contained some medicine, two bank books, and a key ring. The key ring held the keys to Willis' car, Willis' sister's Atlanta home, and her car. There was some testimony regarding the theft of Willis' car the following night, but no connection was made between the theft and Smith.

After the two men left the apartment, Willis said, he tried to call the police. He discovered, however, the wires on his telephone had been disconnected. Willis waited until the next day to notify the police about the break-in.

No police officer testified at trial about the report Willis made or about the line-up procedure. All that was revealed at trial, by way of stipulation, is that Detective Lanahan, if called, would testify that 24 days after the break-in, on October 20, 1996, Smith was arrested and, during his transport to the police station, attempted to flee.

Willis testified he viewed a line-up on the same day as Smith's arrest, October 20, 1996. Willis said he picked Smith out of a line-up and identified him as the shorter of the two men who had broken into his home on September 27, 1996. In court a picture of the line-up was admitted into evidence. Willis placed an X over the head of the person in the picture he had selected -- Smith. Again, no police officer testified about the line-up.

On cross-examination, defense counsel established that Willis, who was wearing eyeglasses at trial, had not been wearing glasses when the break-in occurred on the evening of September 27, 1996. Willis said he wore the glasses mainly for reading and sometimes when watching television. There were no questions concerning Willis' ability to see without glasses.

On redirect, the prosecutor did not address Willis' use of eyeglasses, but asked Willis about the lighting in his apartment at the time of the break-in. Willis said there had been some light coming through the windows from outside. Also, he turned a light on in his dining room as he went to answer the doorbell. Willis said he was able to see the faces of the men clearly when he answered the door.

After counsel finished questioning Willis, the court took over. The trial Judge asked Willis if he had driven to court and if he had been capable of driving his car near the time this event occurred. Willis did not drive to court, but had been driving at the time of the robbery. The Judge then made the following inquiry:

"THE COURT: Okay. If you took off your glasses, could you see where the deputy is sitting, the young lady in the dark uniform?

A. Yes.

Could you take off your glasses and could you see her now if you take your glasses off?

A. Yes.

Would you do that. All right. Can you tell me what ...

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