People v. Brown

• Decision Date: 10 February 1972
• Docket Number: Gen. No. 53508
• Citation: 279 N.E.2d 765,3 Ill.App.3d 1022
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 765

279 N.E.2d 765

3 Ill.App.3d 1022

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry BROWN, Defendant-Appellant.

Gen. No. 53508.

Appellate Court of Illinois, First District, Third Division.

Feb. 10, 1972.

Gerald W. Getty, Public Defender, Andre Mandeville, James J. Doherty, Asst. Public Defenders, for defendant-appellant.

Edward V. Hanrahan, State's Atty., Robert A. Novelle, Brent F. Carlson, Asst. State's Attys., for plaintiff-appellee.

DEMPSEY, Justice.

Larry Brown, 19 years old, and two teen-age co-defendants were indicted for the murder of A.D. Church. A severance was granted Brown because of antagonistic defenses. He was tried by a jury, found guilty and sentenced to the penitentiary. Of the many assignments of error, two compel the reversal of his conviction: prejudicial argument by the prosecutor and an improper jury instruction.

Brown and two companions confronted A.D. Church at the corner of 46th Place and St. Lawrence Avenue, Chicago, about 9:00 P.M., September 24, 1967. One of the youths asked for money and Church replied he did not have any, that he was an old man just coming from church services. Church turned away and a shot was fired which caused his death. Keith Smith, who lived near the corner, heard the shot and went to his front porch where he saw three boys running from the scene of the shooting. He could not identify them but he saw them run west into an alley which had an exit on 46th Street.

The auto of Jafus Kinchen was parked on 46th Street, near the alley. As he was about to drive away some youths came out of the alley and walked by his auto. He noticed that one of them was carrying a shotgun. Virginia Sims, an eleven-year-old girl, was a passenger in Kinchen's car. She recognized Brown, the brother of one of her friends, as he came out of the alley and crossed the street. She did not testify that he had a gun.

The only direct evidence placing Brown at the shooting was an oral statement made by him after his arrest. He told a police officer that he and two other boys were seated on a porch and one of them demanded a quarter from a passerby. When the man refused the request someone fired a shotgun. He said he did not know who fired the gun but his friend Larry Leverston had it after the shooting. They ran to a garage located behind Brown's home where Leverston hid the firearm. After obtaining this information and detailed instructions from Brown, the officer and Brown's stepfather found the weapon in the debris-laden garage.

About 15 minutes before Church's murder, a sixteen-year-old boy named Patrick Clark had been robbed, three and one-half blocks away, by three older boys. One of them, the defendant Brown, was armed with a shotgun. The State called Clark as a witness. Prior to his testifying the court ruled that he would not be permitted to tell about the robbery and no mention of that crime would be allowed. From the witness stand, Clark stated that he had seen Brown carrying a shotgun on 44th Street near Vincennes Avenue, between 8:30 and 8:45 P.M., September 24, 1967.

In the final argument for the State, the prosecutor spoke of the fabric of circumstantial evidence pointing to Brown's guilt. He traced Brown's acts before and after the death of Church, called the jury's attention to a map of the neighborhood, pointed to 44th and Vincennes and its close proximity in space and time to the murder scene and said, 'here . . . Patrick Clark is robbed.'

There was an immediate objection. The court sustained the objection and instructed the jury to disregard the statement. The prosecutor attempted to mitigate his mistake. He told the jurors to consider only the evidence they heard from the witness stand, that Patrick Clark was met by Larry Brown approximately 15 minutes before and approximately two and a half blocks away from the place of the homicide.

Evidence which tends to show that a defendant committed a crime which is unrelated to the one for which he is being tried is both incompetent and prejudicial. People v. Hopkins, 124 Ill.App.2d 415, 259 N.E.2d 577 (1970). In no event, may a prosecutor comment on facts that are not in evidence, nor may he inject into the case, in argument or otherwise, extraneous and inflammatory material. People v. Donaldson, 8 Ill.2d 510, 134 N.E.2d 776 (1956).

Although a prompt attempt to cure the error was made by the court in admonishing the jury to disregard the statement and by the assistant State's attorney in retracting it, the statement had informed the jury that Brown robbed Clark. It was not based on evidence and was of such an inflammatory nature that its effect could not be eradicated. As stated in People v. Deal, 357 Ill. 634, 192 N.E. 649 (1934), the prejudicial effect of an...