People v. Cosey

• Decision Date: 31 March 1980
• Docket Number: No. 78-1970,78-1970
• Citation: 82 Ill.App.3d 968,403 N.E.2d 656,38 Ill.Dec. 425
• Parties: , 38 Ill.Dec. 425 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry COSEY and Ernest Van Johnson, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 656

403 N.E.2d 656

82 Ill.App.3d 968, 38 Ill.Dec. 425

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry COSEY and Ernest Van Johnson, Defendants-Appellants.

No. 78-1970.

Appellate Court of Illinois, First District, First Division.

March 31, 1980.

Rehearing Denied April 28, 1980.

Sam Adam, Marvin Bloom and Arnette R. Hubbard, Chicago, for defendants-appellants.

Bernard Carey, State's Atty. of Cook County, Marcia B. Orr, Pamela L. Gray and Timothy J. McKay, Asst. State's Attys., Chicago, for plaintiff-appellee.

McGLOON, Justice:

After a bench trial, Larry Cosey and Ernest Van Johnson convicted of attempt murder, aggravated battery causing great bodily harm, aggravated battery with use of a deadly weapon, and armed robbery. Each defendant was sentenced to concurrent terms of imprisonment of twenty years for attempt murder, wherein the aggravated battery counts were merged, and ten years for armed robbery.

On appeal, defendants contend that (1) they were denied their right to confront witnesses when the trial court specifically considered matters not in evidence; (2) they were denied competent and effective assistance of counsel; and (3) they were not proved guilty beyond a reasonable doubt.

We affirm.

On November 6, 1977, Michael Lightfoot was shot six times. Larry Cosey and Ernest Van Johnson were arrested in connection with the shooting and were charged by indictment with attempt murder, aggravated battery causing great bodily harm, aggravated battery with use of a deadly weapon, and armed robbery.

At trial, the complainant Michael Lightfoot testified that in the early morning on November 6, 1977, Larry Cosey arrived at his apartment with a package of heroin. They then proceeded to Cosey's house to bag the heroin into small packages and count money. Lightfoot was carrying a .38 caliber revolver containing four bullets and $3,000 in cash.

Ernest Van Johnson was present at Cosey's house when they arrived. Cosey gave Lightfoot some money that they had received from their narcotics business. Lightfoot placed his pistol and the $3,000 he had brought with him on the table and began counting the money. Johnson approached Lightfoot from behind, picked up the pistol, and shot Lightfoot in the back of the head. A scuffle ensued in this room, the adjacent hallway, and the bathroom and Lightfoot was shot several more times.

Lightfoot crawled from the bathroom to the living room behind a bar where he found a bottle. Johnson approached Lightfoot with the gun and Lightfoot hit Johnson in the face with the bottle. He then ran toward Cosey and scratched Cosey's face before being thrown to the ground by Johnson. Johnson and Cosey began hitting Lightfoot with hammers and thereafter put Lightfoot in the trunk of a red Nova.

Lightfoot was shown four photographs. He testified that People's exhibit no. 1 depicted the living room of Cosey's home where he had counted the money. People's exhibit no. 2 depicted the hallway in which he and Johnson had scuffled. People's exhibits 3 and 4 portrayed the bathroom. Each picture was a true and accurate portrayal of the rooms that day.

On cross-examination, Lightfoot testified that when the police officers questioned him at the hospital on November 6, 1977, he did not tell them the truth regarding the events; he wanted to be left alone so that the doctors could operate. He also stated that he did not initially want to "press charges". He told officer Sharif that he was robbed of $3,000 plus the money that he had been counting and denied having told police that he was robbed of $7,000. Lightfoot also admitted that he had "snorted" heroin periodically for the past 3 or 4 years.

Donald Fowlkes, a Chicago police investigator, testified that he spoke to Lightfoot on the morning of November 6, 1977. Lightfoot told Fowlkes that he had been robbed in the hallway of a building located at 71st and Jeffrey and had $600 taken from him. On November 14, 1977, Lightfoot told Fowlkes that Cosey and Johnson had shot and beaten him at Cosey's house and had put him in the trunk of a car. Lightfoot also stated that he had lied earlier because he did not want to "get Cosey in trouble." Investigator Fowlkes also testified that Cosey's apartment was photographed after he was arrested. He was shown these pictures (People's exhibits 1 through 4) and stated that they truly and accurately portrayed the scene of the apartment on November 16, 1977. Each photo was also identified.

Both defendants testified on their own behalf. Larry Cosey denied shooting Lightfoot. He testified that he borrowed Lightfoot's red Nova and went to a movie. He then drove around town and returned to Lightfoot's apartment. When Cosey rang the door bell, Lightfoot came down and drove Cosey home. Lightfoot also asked Cosey to call Linda Wells, Lightfoot's girl friend, and tell her that he was going to get cocaine from a friend. Cosey also testified that he had known Lightfoot for 11/2 to 2 years and that he saw Lightfoot once or twice each week.

Ernest Van Johnson also denied shooting Lightfoot. He testified that he had known Lightfoot for about 6 months and had seen him only once prior to his arrest. On November 6, 1977, he was home watching television with his girl friend. Johnson further stated that he was arrested while walking in front of his home, and denied being arrested as he got out of a red car.

The parties stipulated that if Arthur Lewis were called, he would testify that on the morning of November 6, 1977, he heard someone tapping from inside the trunk of a car and called the police who then freed Lightfoot. The parties also stipulated that Lightfoot's medical reports indicated that he had been shot 6 times and had sustained bruises and lacerations to his head and skull.

First, defendants contend that they were denied their constitutional right to confrontation and cross-examination where the trial court made certain factual findings regarding the photographs. The trial court stated in its findings of fact that the pictures of the bathroom revealed what appeared to be bullet holes. Defendants allege that this finding was not supported by the evidence.

Defendants rely on People v. Wallenberg (1962), 24 Ill.2d 350, 181 N.E.2d 143, and the cases cited therein for the proposition that a court must base its verdict solely on the evidence adduced during the trial. In Wallenberg, the court stated:

"This court has held that the deliberations of the trial judge are limited to the record made before him during the course of the trial. A determination made by the trial judge based upon a private investigation by the court or based upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence constitutes a denial of due process of law. People v. Thunberg, 412 Ill. 565, 107 N.E.2d 843; People v. Rivers, 410 Ill. 410, 102 N.E.2d 303; People v. Cooper, 398 Ill. 468, 75 N.E.2d 885; People v. McGeoghegan, 325 Ill. 337, 156 N.E. 378." (24 Ill.2d at 354, 181 N.E.2d at 145.)

Although this is a correct statement of the law, defendants' reliance on these cases is misplaced since in the case at bar, the trial court's deliberations were not based on either matters within its personal knowledge or private investigations.

We find sufficient evidence in the record indicating that the holes could have been bullet punctures. The testimony at trial regarding the photographs and Lightfoot's testimony regarding the shooting which took place in the hallway and bathroom provide an evidentiary basis for the trial court's conclusion. Indeed it is a function of the trier of fact to determine inferences from testimony. (People v. Zuniga (1973), 53 Ill.2d 550, 293 N.E.2d 595.) Moreover, defendants had the opportunity to see the photographs and cross-examine the witnesses about the photographs.

Secondly, defendants argue that they received incompetent assistance of counsel. As evidence of their trial attorney's incompetence, they cite Mr. Stillo's failure to object to the testimony of officer Fowlkes regarding the conversations he had with Lightfoot. Defendants state that this testimony was inadmissible hearsay.

However, the hearsay rule is inapplicable where the same matters have been testified to by the out-of-court declarant. (People v. Sepka (1977), 51 Ill.App.3d 244, 9 Ill.Dec. 704, 367 N.E.2d 138; People v. Robinson (1977), 47 Ill.App.3d 48, 5 Ill.Dec. 436, 361 N.E.2d 759.) Lightfoot had previously testified about the manner in which he had been shot and beaten and the original lie he had told to police. The testimony of officer Fowlkes presented no new evidence. Therefore Mr. Stillo's failure to object did not reflect incompetence.

Defendants also argue that they received ineffective assistance of counsel because their trial attorney failed to investigate and properly prepare their case. Their new attorney, retained after trial, presented a motion for a new trial to which were attached the affidavits of five persons who would have testified to circumstances which might have raised a question as to the innocence of the defendants. Two affiants, Cosey's step-father and a tenant who lived in the building where the shooting took place, stated that they were home on the evening in question and heard no unusual noises. Cosey's mother and a carpenter hired by her, stated that the basement was being remodeled at the time and that they noticed no change in the condition of the premises. Johnson's girl friend stated that she spent November 5 and 6, 1977, with Johnson.

In People v. Murphy (1978), 72 Ill.2d 421, 21 Ill.Dec. 350, 381 N.E.2d 677, the Illinois Supreme Court enunciated the standard for evaluating the competency of retained counsel:

"A strict test is applied in determining whether privately retained counsel is incompetent:

'In such a case the court will not reverse a conviction because of the incompetency of counsel unless the representation is of such a low caliber as to...