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People v. Paul

April 22, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KEVIN R. PAUL, DEFENDANT-APPELLANT



Appeal from the Circuit Court of Madison County No. 95-CF-351 Honorable Charles V. Romani, Jr., Judge, presiding

The opinion of the court was delivered by: Justice Goldenhersh

Following a jury trial in the circuit court of Madison County, defendant, Kevin R. Paul, was found guilty of armed robbery (720 ILCS 5/18-2(a) (West 1994)) and was sentenced to 22 years' imprisonment. Defendant appeals his conviction, contending that (1) he was not proven guilty beyond a reasonable doubt, (2) the trial court erred in restricting the impeachment of a key State's witness with evidence of his prior convictions, when the court ordered the use of the mere-fact impeachment method, (3) his right to a fair trial was violated by the State's improper closing argument, and (4) the trial court erred in refusing to order a fitness hearing where defense counsel informed the court that defendant had been taking psychotropic drugs prior to trial. For the following reasons, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

Defendant, defendant's brother Leslie Paul, and James Hill were all charged with the February 4, 1995, armed robbery of the Hamp's Quickway Store (Hamp's) in Glen Carbon.

Prior to trial, both defendant and the State made motions in limine. Defendant sought to prevent the State from being able to impeach him with evidence of his prior convictions, and the State wanted to limit defendant's ability to impeach its main witness, James Hill, with evidence of his prior convictions. The trial court indicated that it would allow "mere fact" impeachment of both defendant and Hill, with the exception that the jury could learn that Hill had pleaded guilty to armed robbery in this case.

The evidence at trial, viewed in the light most favorable to the prosecution (see People v. Digirolamo, 179 Ill. 2d 24, 43, 688 N.E.2d 116, 124 (1997)), revealed the following. On February 4, 1995, Josephine Evans was working as a clerk at Hamp's. At approximately 8 p.m., a man wearing a ski mask entered Hamp's, pointed a gun at Evans, and demanded money from the cash register. Evans complied with the command and put about $200 in a McDonald's bag that the masked man had given her. The robber told her to lie on the ground, and then he ran out the door.

Barry Bushong testified that on February 4, 1995, around 8 p.m., he saw a car traveling down Collinsville Street without any headlights on and that the car eventually stopped behind Hamp's. He saw a man wearing a ski mask run out of Hamp's and jump into the car. The masked man, whom Bushong described as "average size," got into the front seat of the vehicle. When the car's dome light went on, Bushong saw a white male wearing a baseball cap driving the car. As the car sped away, Bushong obtained the license plate number. He noticed only two people in the car. Bushong went into Hamp's and learned that the store had been robbed.

Glen Carbon police officer Melissa Jackson checked the license plate number and determined that the car was registered to James Hill of East Alton. Thereafter, the East Alton police were notified. East Alton police officer Michael Rexford went to Hill's residence, looking for the blue Pontiac Grand Am. The vehicle was not there. Rexford waited for the automobile to arrive. After identifying the blue Pontiac Grand Am, Rexford made a traffic stop of the vehicle and arrested James Hill (the driver), Leslie Paul (the front seat passenger), and defendant (the back seat passenger). While searching the vehicle, Rexford found a stocking cap and brown gloves in the front seat, a pile of clothes behind the driver's seat, and a BB gun under the back seat. Evans identified the ski mask and the BB gun taken from the car.

Hill testified that at the time of his testimony he was serving 10 years in prison for armed robbery in connection with this case. He also testified that he was awaiting sentencing on two other Class X felonies. He acknowledged that he had five other unnamed prior felony convictions.

Hill further testified that on February 4, 1995, defendant and Leslie Paul had been staying with him. Hill, Leslie Paul, and defendant contemplated committing an armed robbery at Hamp's to obtain money for heroin. Subsequently, the three men drove to Hamp's, and defendant got out of the car. Defendant was wearing a stocking mask pulled over his face. Leslie Paul was ducking down in the back seat so it looked like Hill was driving by himself. Leslie Paul did not go into Hamp's because he has a limp, he knew the clerk, and he thought that the clerk would detect his identity from his limp. Hill drove down the street, turned around, and came back. Defendant ran out of the store and jumped into the car. Defendant wiped off the BB gun with the gloves he was wearing and handed it to Leslie Paul, who was sitting in the back seat.

The three men drove to East St. Louis and acquired drugs with the $200 defendant had stolen. They used the drugs in a McDonald's parking lot in Collinsville. Leslie Paul got in the front seat to inject Hill with the heroin, since Hill could not do it himself. They had been using heroin and smoking crack cocaine since noon that day.

They all tried on the stocking hat. Hill identified the items of clothing and the containers of drugs seized from the automobile. Hill admitted that he was addicted to heroin at the time of the arrest.

Hill provided the police with information regarding this case because he wanted to tell the truth and to cooperate. He also admitted that his February 7, 1995, police statement did not state that defendant had planned and decided to commit the robbery. He conceded that the sentence he received in this case was a good deal considering his criminal history. He stated that he did not receive any promises in exchange for his testimony. Hill also acknowledged that in 1990 he and Leslie Paul had been arrested for a crime and that he implicated Leslie Paul in connection with that crime.

Officer Jackson further testified that neither Evans nor Bushong could identify anyone in a lineup. However, Bushong had thought that Hill looked like the driver. Defendant had never been in a lineup.

Susan Kidd, a State Police forensics examiner, performed tests on the five hairs recovered from the ski cap. She tested and compared the hairs found on the ski cap to hair samples from Leslie Paul and defendant. Of the five hairs found on the ski cap, Kidd determined that four could have come from Leslie Paul and one could not have come from Leslie Paul. Kidd did not have enough of a sample of defendant's hair to determine whether defendant could have been a source of the last hair sample. Kidd did not perform a test on a sample of Hill's hair. Duane Abrams, a State forensics examiner, testified that heroin and cocaine were found in the containers recovered from the automobile.

The parties stipulated that Leslie Paul's fingerprints were the only fingerprints found on the BB gun. The State rested its case. Immediately afterward, defendant ...


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