People v. Griffin

• Decision Date: 14 May 1984
• Docket Number: No. 81-430,81-430
• Citation: 124 Ill.App.3d 119,463 N.E.2d 1055,79 Ill.Dec. 501
• Parties: , 79 Ill.Dec. 501 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lee Otis GRIFFIN and Jimmy Lee Smith, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1055

463 N.E.2d 1055

124 Ill.App.3d 119, 79 Ill.Dec. 501

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lee Otis GRIFFIN and Jimmy Lee Smith, Defendants-Appellants.

No. 81-430.

Appellate Court of Illinois,

Fifth District.

May 14, 1984.

David C. Hoffman, Ripplinger, Dixon & Hoffman, Belleville, for defendant-appellant, Lee Otis Griffin.

Randy E. Blue, Deputy State Appellate Defender, David M. Raymond, Asst. State Appellate Defender, Mount Vernon, for defendant-appellant, Jimmy Lee Smith.

John Baricevic, State's Atty., Belleville, Stephen E. Norris, Deputy Director, Raymond F. Buckley, Jr., Staff Atty., State's Attys. Appellate Service Com'n, Mount Vernon, for the People.

HARRISON, Justice:

Following a jury trial in the circuit court of St. Clair County, defendants were convicted of three counts of murder and one count of armed violence. Defendant Griffin was sentenced to three concurrent terms of 40 years for the murder convictions, and one concurrent term of 30 years for the armed violence conviction. Defendant Smith received three concurrent life sentences, and one concurrent 60 year sentence. A partial summary of the testimony presented at trial follows.

Charles Kellick testified that on February 5, 1981, he went with his friend, Charles Sims, to an apartment inhabited by Ronald Walker and Christi Smith. Velma Robinson accompanied Kellick and Sims, but remained in Kellick's truck and did not enter the apartment building. Upon entering the unlocked apartment and proceeding to the bathroom, Kellick and Sims encountered Christi Smith in the company of defendant Griffin. Ms. Smith was crying. As Charles Sims stepped into the bathroom, defendant Griffin shot him. Kellick turned and observed two other men. He ran to the front door of the apartment, and was shot in the back of the head. Defendant Smith then approached Kellick and shot him in the face. Feigning death until his assailants departed, Kellick hid himself under a stairway until police arrived. Kellick testified that he had observed defendant Griffin on two prior occasions. The first occasion was when Kellick patronized a furniture store owned by Griffin. The second occasion was when Kellick and Sims had given Christi Smith a ride to an apartment where Griffin and defendant Smith were present. This was apparently the only time Kellick had observed defendant Smith (known to Kellick by the nickname "Rush City Jimmy") prior to the shooting.

Velma Robinson testified that she met Kellick and Sims at approximately 5 p.m. on the day in question. Following a discussion, she accompanied Kellick and Sims to the apartment building. Immediately after Kellick and Sims entered the building, she observed two other men (one of which she identified as defendant Griffin) exit a parked car and enter the same building. Within seconds, she heard a shot. The two men emerged from the building and drove away. Several minutes later, she observed Ronald Walker enter the building. After Walker's arrival, the same two men she had observed previously re-entered the building. Upon hearing a shot, she drove away to find a policeman.

Lionel Settles, an East St. Louis police officer, testified that he was working as a security guard at the National Food Store on the evening of February 5, 1981. A person subsequently identified as Ronald Walker ran into the store, bleeding profusely from bullet wounds. Settles testified as follows concerning Walker's subsequent statements:

"I had a conversation as I was saying with the subject as to what had happened. And when he said he walked into his apartment and saw the two people on the floor, one of which was his girl friend, they were--he just mentioned they, were standing inside of the door, and told him to come inside. And as he made a couple of steps forward, he was shot.

Q Did he tell you who shot him?

A Yes, he did.

Q What did he say?

[DEFENSE COUNSEL]: Continuing objection.

THE COURT: Note the same objection. Same ruling.

A He said a subject by the name of Lee had shot him.

Q Did he say anything more to identify Lee?

A Yes, he said the subject named Lee that owns a used furniture store in the outer State Street area.

Q Did you ask him who had shot his girl friend?

A Yes, I did. His reply was a subject only known to him as Rush City Jimmy."

Darrell Rice, an Illinois state trooper, testified that he was off-duty on the evening in question, and purchasing groceries at the National Food Store. At approximately 6:30 p.m., trooper Rice was engaged in informal conversation with officer Settles. At that time, Ronald Walker entered the store. Trooper Rice's account of Walker's statements concerning his assailant was as follows:

"Q Did anyone ask who shot him?

A Yes, we asked him who shot him, and he stated that a fellow by the name of Lee, his friend shot him, Lee's friend shot him, and he also stated that a fellow they called Rush City Jimmy shot his girl friend at that house."

David Winchester, associate manager of the National Food Store, testified that he was present in the store at approximately 6:30 p.m. on the same evening, and that he also witnessed Ronald Walker's statements. According to Mr. Winchester, Ronald Walker had been talking to officer Settles and trooper Rice "[p]ossibly 30 seconds" before Mr. Winchester arrived. A portion of Mr. Winchester's testimony follows:

"Q * * * What remarks do you remember?

A Okay. He ¹ said they were talking about a furniture store, a guy that ran a furniture store, and that they put a gun on his face, and told him to come on inside, and at the time I thought maybe he was in a stick-up or something at a furniture store. But then they asked him where the apartment was, and he said [sic] 11th Street address. * * * I remember he said there was three more dead in the apartment, and he said my girl friend is dead. He said they killed my girl friend.

Q Did he say who had shot him?

A I didn't hear that, no.

Q Did he say who had shot his girl friend?

A He said Rush City Jimmy had shot his girl friend."

All three witnesses to Ronald Walker's statements testified that Walker requested hospitalization and indicated a belief of impending death.

The key defense witness was Priscilla Smith, who testified that in the late afternoon of February 5, 1981, she was present at Robert Easton's tavern in East St. Louis. Between 4:30 and 5 that afternoon, she observed both defendants playing cards. Sometime after 6 p.m., defendant Griffin approached her and borrowed five dollars. At some point between 6:30 and 7 p.m. (i.e., "something to 7"), Ms. Smith noted that defendants had left the tavern.

Defendant Griffin testified on his own behalf. He stated that he and defendant Smith arrived at Easton's tavern shortly before 5 p.m., and left at approximately five minutes before 7 p.m.

One of several allegations of error raised by defendant Griffin, and the only allegation raised by defendant Smith, is that the court erred in admitting certain photographs of the victims which, it is argued, were introduced for the purpose of inflaming the jury and prejudicing it against defendants. The black and white photographs depict the bodies of Charles Sims, Christi Smith, and Ronald Walker as they appeared in the morgue. While the bodies are unclothed, only the victims' heads and chests, wherein the bullet wounds were sustained, are visible. One of the pictures of Christi Smith displays a considerable quantity of dried blood on her face.

The decision as to whether a photograph of a deceased person should be admitted into evidence normally rests within the discretion of the trial court. (People v. Lefler (1967), 38 Ill.2d 216, 221, 230 N.E.2d 827.) Where such photographs are relevant to establish any fact in issue, they are admissible, even though the photographs may be of a gruesome nature. (People v. West (1977), 54 Ill.App.3d 903, 909, 12 Ill.Dec. 642, 370 N.E.2d 265.) A defendant may not avoid the introduction of photographic evidence by offering to stipulate to the facts for which the evidence is offered as proof. (People v. Speck (1968), 41 Ill.2d 177, 201, 242 N.E.2d 208.) Moreover, photographs bearing on the cause of death of an alleged murder victim do not become unnecessarily cumulative because there is oral testimony bearing on the same issues. (People v. Henenberg (1973), 55 Ill.2d 5, 14, 302 N.E.2d 27.) The photographs of Sims, Smith, and Walker tended to establish the identity of the victims and the fact and cause of death. The instant case is distinguishable from People v. Lefler, cited by defendants. In Lefler, it was held that autopsic color photographs of incisions in the chest cavity and skull of a baby allegedly murdered by her father were improperly admitted, since the actual body of the deceased child bore little superficial evidence of injury and the gruesome nature of the pictures was caused almost entirely by the autopsy procedures. Detective Evan Kyle, who took the photographs, apart from the removal of clothing from the bodies, accurately portrayed the decedents as they appeared at the scene of the crime.

The remaining allegations of error are raised by defendant Griffin. Griffin first contends that the trial court erred in denying his motion for a severance, thus subjecting him to undue prejudice in view of defendant Smith's criminal record, and preventing his attorney, who also served as counsel for Smith, from pursuing the defensive theory most advantageous to Griffin.

The general rule governing severance is that persons jointly indicted should be jointly tried. (People v. Brown (1975), 27 Ill.App.3d 569, 575, 327 N.E.2d 51.) In determining whether a severance should be granted, the primary consideration is whether the defenses are of such an antagonistic nature that a severance is imperative to insure a fair trial. (People v. Canaday (1971), 49 Ill.2d 416, 424, 275 N.E.2d 356.) The defenses of Smith and Griffin were in no manner inconsistent....