People v. Bell

• Citation: 326 N.E.2d 507,27 Ill.App.3d 171
• Decision Date: 11 April 1975
• Docket Number: No. 73--342,73--342
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ralph BELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 507

326 N.E.2d 507

27 Ill.App.3d 171

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ralph BELL, Defendant-Appellant.

No. 73--342.

Appellate Court of Illinois, Second District, Second Division.

April 11, 1975.

Ralph Ruebner, State App. Defender Agency, Deputy App. Defender, Mary McCormick, Elgin, for defendant-appellant.

Gerry L. Dondanville, State's Atty., Geneva, Clarence Wittenstrom, Jr., Asst. State's Atty., Elgin, for plaintiff-appellee.

DIXON, Justice:

Defendant, Ralph Bell, was indicted on one count of attempt armed robbery. He was found guilty by a jury in the Kane County Circuit Court and, after the denial of post trial motions was sentenced to 3 1/3 to 10 years in the penitentiary. He appeals on the grounds that he was denied a fair trial in that the prosecutor mentioned in his opening statement evidence which was prejudicial to defendant and not brought out at trial, that the court erred in permitting him to be impeached by a prior inconsistent statement absent a proper foundation for the impeaching testimony, that he was not proven guilty beyond a reasonable doubt, and that the sentence imposed violated the Unified Code of Corrections.

Around midnight on Oct. 29, 1971, Jonathan Hanchett, a security guard at Dominick's Food Store in Elgin was making his rounds outside the store when a person wearing a ski mask and carrying a gun surprised him. Hanchett could not determine the sex of this person. The assailant frisked Hanchett, but made no attempt to take anything from him.

Hanchett could tell the assailant was black because a portion of his face was visible through the ski mask. The assailant wore dark clothing, including a dark indistinguishable jacket, probably waist length. Hanchett testified that he did not see such a coat in the courtroom. Defendant's brother was wearing a long, dark coat in the courtroom, later identified as the coat defendant was wearing at the time of his arrest.

Hanchett got a good look at the gun while the assailant was frisking him, the gun looked tattered and had chipped paint. He testified that a gun and mask similar to those of the assailant were shown to him by a detective about forty minutes after the incident. Hanchett identified at trial a gun and ski mask shown him by the prosecutor as those used by the assailant.

While the assailant was frisking Hanchett, Duane Richert, a grocery store employee, came around the corner and startled the assailant. The assailant followed the boy around the corner where the boy disappeared.

Richert testified that just before midnight on Oct. 29, 1971, he walked out of the grocery store. He heard a noise and upon investigation saw Hanchett against the wall and a man holding a gun against him. The assailant yelled at Richert to stop, but Richert ran into the building, followed by the assailant. The assailant pointed the gun at Richert and then ran out the door. Richert could not identify the assailant who wore a mask.

William Pasholk was sitting in his parked car in the grocery store parking lot about midnight on Oct. 29, 1971. His testimony coincided with that of Hanchett and Richert. When the assailant pointed the gun at Richert, Pasholk ducked his head. He heard three clicks. His car engine was running at the time and possibly only the one window on the driver's side was down. Pasholk could not tell the sex of the assailant, but the assailant was wearing a ski mask and dark clothing. There was nothing distinguishing about the assailant's coat.

Allen Piske, an Elgin detective, went to Dominick's Food Store in his car on Oct. 29, 1971 after getting a call concerning an armed robbery there. He met other police cars there and he searched the area to the south of the store as the assailant had fled south on foot.

Piske and an Officer Schroeder went in separate cars to 464 Hickory St., because a blue station wagon was seen pulling into a driveway. They saw the car there and upon Piske shining his flashlight into the car, defendant, whom Piske knew, raised his head. Defendant got out of the car and said it belonged to a 'Dale' who drove him there but whose last name he did not know. A sticker on the car indicated to Piske that defendant's mother owned the car.

Piske then flashed his light into the back seat of the car and saw a suitcase with knit material protruding. Upon opening the suitcase Piske found among other things, a gun and ski mask which he identified at trial. Defendant was wearing a long, dark coat at that time, which Piske identified at trial.

Piske took the mask and gun to the scene and showed them to witnesses. Defendant's fingerprints were not on the gun or the kit found in the suitcase. Piske test-fired the gun and it misfired about ten times in eleven.

Officer Schroeder traveled down Hickory St., after receiving a call concerning the incident and saw a blue Pontiac pull into the driveway at 464 Hickory St. A few minutes later he returned to 464 Hickory St., in response to a radio message. The blue station wagon was still there. Schroeder met Piske there and did not recall any conversation he or Piske had with defendant when he was arrested.

Officers Heine and Lawrence returned to the scene of the offense after they received the gun found in the car with defendant. Heine remained in the car, parked where Pasholk's car had been parked, and left the engine running and windows closed. Lawrence test-fired the gun where he was told the assailant had tried to shoot at Richert. Heine heard three clicks.

Robert Merrill, an evidence technician, testified that he obtained possession of the gun, mask and other items from Piske and placed them in an evidence vault to which he had the sole key. Merrill gave them to Piske when the trial began.

Defendant testified that at 11:30 P.M. on Oct. 29, 1971 he had walked 4 1/2 blocks to the house of a lady known to him only as 'Louise', on Hickory St. He drank a few beers there with others. He was feeling high around midnight and left. Joe Harper, a friend, was pulling into the driveway with defendant's mother's car. Defendant asked for a ride and was told to wait in the car.

Defendant said he laid down in the car and the police came and flashed a light on him. He told the police he had been drinking and was waiting for a ride. He denied that any policeman asked him who owned the car.

Defendant denied every aspect of the charge and said he had not gone to Dominick's that night. On cross-examination, defendant admitted that he had had a conversation with Officer Smith at the Tower Grill concerning an offense with which his brother was charged.

On rebuttal, Officer Smith, testified to that conversation, saying that defendant told him that he (defendant) was being blamed by his family for his brother's crime. Defendant denied committing the crime his brother was involved in, but admitted the offense at Dominick's. This conversation lasted for thirty minutes, most of the discussion centering around defendant's brother's charge.

The issues on appeal are:

I. Was defendant denied a fair trial in that the prosecutor commented in his opening statement on evidence material to the prosecution which was not brought out at trial and which was prejudicial to defendant?

II. Did the trial court commit reversible error by permitting defendant to be impeached by a prior inconsistent statement without requiring a proper foundation to be laid for the testimony of the witness?

III. Did the prosecution fail to prove defendant guilty beyond a reasonable doubt?

IV. Was the sentence imposed on defendant in violation of the Unified Code of Corrections?

I. In his opening statement, the prosecutor told the jury that a blue station wagon was seen leaving the area of the instant offense. There was no testimony to this effect adduced at trial. Defendant argues that this is reversible error because any indication that a blue station wagon was seen leaving the scene of the crime substantially damaged his alibi. However, defendant is making this objection to the prosecutor's opening statement for the first time on appeal.

Defense counsel had the entire file of the prosecution on the instant case well before trial. Thus, when the prosecutor made the above mentioned statement, the defense knew that the prosecution had no specific evidence on that point and should have objected at that time. Perhaps defense counsel decided not to object as a matter of trial strategy, possibly reasoning that the prosecution's case would be weakened when the jury was shown that the prosecution could not prove this one aspect of the crime.

In any event, there is no indication of bad faith on the part of the prosecution in making this statement. The good faith of the prosecutor in making his opening statement is to be considered in looking at improper remarks contained in the statement. (People v. Rogers, 303 Ill. 578, 136 N.E. 470.) The remark made by the prosecutor in Rogers was much more serious than the remark made here (a reference to a subsequently excluded confession). Also, '* * * reversal is not warranted unless it appears that the improper remarks complained of influenced the jury in a manner that resulted in substantial prejudice to the accused.' (People v. Stahl, 26 Ill.2d 403, 406, 186 N.E.2d 349, 351.) In light of the other evidence against defendant, we cannot say that the remarks regarding a blue station wagon being seen leaving the area of the instant offense substantially prejudiced defendant.

Defendant argues that he did object to the prosecutor's opening statement in his motion for a new trial. However, looking at the objection by itself ('That the prosecutor's opening and closing arguments were prejudicial and inflammatory.'), it is clearly insufficient. An objection must be specific, giving notice of what in particular is objected to and the reasons for the objection, otherwise the right to object is generally waived and the error cured. (People v. Trefonas, 9 Ill.2d 92, 136...