People v. Dallas, 78-602

Decision Date16 May 1980
Docket NumberNo. 78-602,78-602
CourtUnited States Appellate Court of Illinois
Parties, 40 Ill.Dec. 110 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Janette DALLAS and Curtis Cooper, Defendants-Appellants.

Page 1202

405 N.E.2d 1202
85 Ill.App.3d 153, 40 Ill.Dec. 110
PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Janette DALLAS and Curtis Cooper, Defendants-Appellants.
No. 78-602.
Appellate Court of Illinois, First District, Fifth Division.
May 16, 1980.

[85 Ill.App.3d 155]

Page 1204

[40 Ill.Dec. 112] Ralph Ruebner, Gary Jay Ravitz, Chicago, for defendant-appellant Janette Dallas.

Frederick F. Cohn, Chicago, for defendant-appellant Curtis Cooper.

Bernard Carey, State's Atty., Chicago (Maricia B. Orr, Joan S. Cherry, Terence P. Gillespie, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

WILSON, Justice:

After a jury trial, defendants Curtis Cooper and Janette Dallas were each found guilty of aggravated battery (Ill.Rev.Stat.1975, ch. 38, par. 12-4), armed robbery (par. 18-2), and attempt armed robbery (pars. 8-4 and 18-2) and Cooper was found guilty of the additional charge of attempt murder. (Pars. 8-4 and 9-1.) Cooper was sentenced to concurrent prison terms of 17 to 20 years for the armed robbery, 17 to 20 years for the attempt murder, and 6 to 20 years for the attempt armed robbery and Dallas was sentenced to concurrent terms of 10 to 12 years for the armed robbery, 3 to 10 years for the attempt armed robbery, and 1 to 10 years for the aggravated battery. On appeal, they contend that (1) they were denied due process of law and the right to [85 Ill.App.3d 156] a trial by an impartial jury when the court refused to ask a specific question during voir dire examination; (2) they were denied effective assistance of counsel when they were each represented by an assistant Cook County Public Defender despite various conflicts of interests between them; and (3) they were denied a fair trial by certain statements made by the assistant State's Attorney during

Page 1205

[40 Ill.Dec. 113] closing argument. Additionally, Cooper contends that (1) he was denied due process when he was unable to prove that an array of photographs shown to witnesses was unnecessarily suggestive because the police failed to retain the photos; (2) he was denied a fair trial when the court prevented him from impeaching a witness with a tape recording of a prior inconsistent statement; (3) he was denied a fair trial by the presentation of prejudicial evidence and innuendos; (4) the trial court committed plain error when it improperly instructed the jury on the elements of attempt murder; and (5) the trial court abused its discretion in sentencing him. Although we find that some error occurred in the trial court, we affirm the judgment of the trial court.

Most of the basic facts of the offenses charged in this case are not in dispute. On December 24, 1975, at about 7:30 p. m., Sisters Noreen Burns and Ramona Nowak, two Roman Catholic nuns who were at the time not dressed in their religious garb, were robbed at gunpoint by a man and woman in the vicinity of 82nd and Ashland Avenue. After the man took Sister Burns's purse and the woman searched Nowak's pockets, the nuns pushed away their assailants and attempted to flee. As Sister Burns called for help, the man shot her in the stomach. At trial, the bullet remained lodged in her body in close proximity to her vital organs. After shooting Sister Burns the man and woman fled down an alley. Their identity is in issue in this case.

STATE'S CASE IN CHIEF

At trial, Sister Burns positively identified defendants Cooper and Dallas as the man and woman who were involved in the December 24 incident. She stated that she first saw the man and woman as she and Sister Nowak walked past the northwest corner of 82nd and Ashland on their way to their car. The man and woman were the only people that she saw on the street at that time. They were facing in the opposite direction and thus she was unable to see their faces. However, she was able to tell that the man was very tall and slender and the woman was shorter than the man. After she and Sister Nowak turned the corner, heading west towards their car, the man and woman came up behind them and the man thrust a sharp object into Sister Burns's back, telling her, "I'm going to blow your brains out, get over to the car." She then turned around and had her first opportunity to see the man's face; she also "noticed" or "saw" [85 Ill.App.3d 157] the woman, but it is unclear whether she saw the woman's face. 1 The man and woman then pushed her and Sister Nowak face-forward toward their car and ordered them to put their hands on top of the car. After they had done so, the man ordered Sister Burns to give her purse to him. As Sister Burns turned to her right to give the man her purse, she again saw his face. Her trial testimony on this point, however, differed somewhat from her preliminary hearing testimony. At trial, she testified that she made a three-quarter turn or turned completely and, was facing the man when she gave him the purse. At the preliminary hearing, she testified that she turned a little "sideways" when she gave the man her purse and she only saw him "sideways." Also, her trial and preliminary hearing testimony differed on whether she saw the woman on this occasion. At trial, she testified that when she turned to give the man the purse she did not see the woman, but, at the preliminary hearing, she testified that she "caught a glimpse" of the woman. After Sister Burns gave the man her purse, he again ordered her to turn around and put her hands up against the car. While there, she was able to see the woman as she was searching Sister Nowak's jacket pockets. At trial, she testified that she saw the woman's face for a matter of seconds; at the preliminary hearing, she testified that she got a "glimpse" of the

Page 1206

[40 Ill.Dec. 114] woman. While Sister Burns stood at the car, she heard Sister Nowak tell the woman: "Do you know what you are doing? You must be crazy." The woman told Sister Nowak to "shut up."

After the woman had completed her search, the man ordered Sister Burns and Sister Nowak into their car. When Sister Burns refused, the man pushed the sharp object deeper into her back and again ordered her into the car. She then turned, pushed him out of the way, and sped past the man and the woman toward Ashland Avenue. While she was doing this she again saw the man's face, but she did not see any gun. At one point in her testimony, she said that she did not see the woman's face but she later contradicted herself by saying that she was positive that she saw the woman's face too. As she approached Ashland, she saw someone in the crosswalk and yelled for help. She then turned and pointed to her assailant as he was running toward an alley, just west of the robbery scene. As she pointed, the man turned around, raised his gun, and pointed it toward Sister Nowak who had been chasing him. When Sister Burns again yelled for help, the man changed his aim and shot Sister Burns in the stomach. When he fired, he was standing about 25 feet away from her and [85 Ill.App.3d 158] she was again able to see his face. After the shooting, the man and woman ran in a northerly direction up the alley.

Sister Burns testified that at the time of the incident, the scene of the crime was blanketed with freshly fallen snow and illuminated by street lights on all four corners of 82nd and Ashland, a sodium vapor light at the alley, and lights from passing cars. She said that the incident, from approach to flight, took about 60 seconds, during which time she saw the male offender for either more than 20 seconds or "probably about" 40 seconds and the female for about 10 seconds. During the time she had to view the male offender, she did not notice whether he had any facial hair on him or whether he was a light or dark complected Black, but she did notice that he was very tall and very thin. During the time she had to view the female offender, she did not notice if she were a light or dark complected Black.

After the incident, Sister Burns was taken to a hospital where she was shown photographs of male and female suspects by police officers on December 26. At trial, she stated that she selected defendant Cooper's black and white photograph from 5 black and white photographs of Black males. At the preliminary hearing, she testified that she had chosen a color photograph of Cooper. In either event, she told the police that she was sure that Cooper was the man who had robbed her. She also selected defendant Dallas's photograph from 5 photographs of Black females and told the police that she was the woman who had robbed her.

At a preliminary hearing on January 29, 1976, Sister Burns saw defendants Cooper and Dallas for the first time since the incident. Before the case had been called, she saw Cooper walk through the courtroom door. When she saw him, she pointed him out to Sister Nowak and told her that he was the man who had robbed them. She testified that Cooper was not the only Black who had entered the courtroom and that she had not seen any photographs of him since the December 26 photo display. Also, she saw defendant Dallas either standing in an adjoining room to the courtroom with other Black females before the case was called or as she stepped out of that room as the case was called. When Sister Burns saw Dallas, she told Sister Nowak that she was the woman who had robbed them.

At trial, Sister Ramona Nowak also identified defendants Cooper and Dallas as the man and woman who were involved in the December 24 incident. She said that she did not see anyone on the street until after the woman began searching her pockets. At that time, she turned around and saw the woman "eyeball to eyeball." She noticed that the woman was wearing a curly wig and high gloss makeup. She told the woman: "You have got to be kidding. Do you know what you are doing?" The woman looked at her and told her to "shut up."

Page 1207

[40 Ill.Dec. 115] The man then told Sister Nowak: [85 Ill.App.3d 159] "turn around and put your hands up on the car or I will blow your...

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