People v. Holmes

• Decision Date: 19 August 1976
• Docket Number: No. 60591,60591
• Citation: 354 N.E.2d 611,41 Ill.App.3d 956
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Norvel HOLMES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 611

354 N.E.2d 611

41 Ill.App.3d 956

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Norvel HOLMES, Defendant-Appellant.

No. 60591.

Appellate Court of Illinois, First District, Third Division.

Aug. 19, 1976.

James J. Doherty, Public Defender, Chicago, for defendant-appellant; Lance R. Miner, Chicago, of counsel.

Bernard Carey, State's Atty., for plaintiff-appellee; Donald M. Devlin, Winnetka, of counsel.

MEJDA, Presiding Justice:

Defendant, Norvel Holmes, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of the offense of attempted armed robbery. (Ill.Rev.Stat.1971, ch. 38, par. 8--4.) He was sentenced to a term of 3 to 9 years in the State penitentiary. Upon appeal defendant contends:

1. The identification evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt;

2. Improper statements made in the prosecutor's final arguments deprived him of a fair trial;

3. He was erroneously denied discovery of statements made to the prosecution by defense witnesses;

4. Two defense exhibits were erroneously excluded from evidence; and

5. He was denied a fair trial as a result of an improper and independent investigation by the jurors into certain facts of the case.

A summary of the facts follows:

Defendant was charged by indictment with committing the offense of attempted armed robbery against Patricia Maciejewski on March 31, 1972. Prior to trial defendant moved to suppress his identification by the complaining witness at the Cicero, Illinois police station on the basis that an impermissibly suggestive pretrial identification procedure was utilized. That motion was granted by the trial court.

At trial Patricia Maciejewski testified. At approximately 1:30 on the morning of March 31, 1972, she returned from work and drove into the alley behind her home to put her car in the garage. She took a broom from the garage and swept snow away in order to open the garage door. She then turned on the light and drove the car into the garage. As she started to close the door a man stepped out from the alley and demanded money. He was black, of average build and height, and was wearing a corduroy car coat with a light-colored collar; a dark blue ski mask with a stripe around the forehead covered his face, but his skin color could be seen through the eye opening. His left hand was covered with some type of cloth material and held a small butcher knife. The witness screamed, pulled down the garage door, ran into the house, and from the back porch saw the man running down the alley. She called the Cicero police and gave them a description of the man. The police later arrived at her home with a man in custody; they showed her a ski mask, a broken knife and a pair of socks they had taken from the suspect. She viewed the suspect in the rear of a patrol wagon and later identified him at trial. She stated that the ski mask and corduroy coat were similar to those worn by her assailant, but she could not identify the broken knife because she had seen only the blade of a knife during the incident. The officers had defendant make shoeprints in the snow next to prints near her garage door. The witness testified that the left shoeprint made by defendant matched a left print where her assailant had stood, both in size and in a marking on the heel which consisted of a disc emblem with a line extending through it.

Officer Ronald Liss of the Cicero Police Department testified. He and his partner, Chester Hiller, were on patrol when they received a radio report at 1:50 a.m. concerning the attempted armed robbery of Patricia Maciejewski. After receiving a description of the offender they drove south on Austin Avenue and passed a car heading north, driven by a black man wearing a coat with a light-colored collar. At trial Officer Liss identified defendant as the driver of that vehicle. Liss made a U-turn and curbed the car on Austin Avenue near Cermak Road. As the car came to a stop Officer Hiller noticed that something was thrown from the passenger window of defendant's car. Liss observed a broken knife on the floor of the front of the car and he noticed that defendant was not wearing socks. Officer Hiller found a ski mask on the curb near the passenger side of defendant's car. Defendant was placed under arrest, and taken to the victim's home where he was requested to make shoeprints in the snow next to existing shoeprints alongside the garage. The left heel of his shoeprint matched the left heel of one of the previously made shoeprints in that each had the same crack-like indentation.

Officer Chester Hiller testified. As defendant's car was stopped he saw something thrown from the passenger window. He walked to the car and told defendant he wanted to talk about an attempted robbery. As defendant got out of his car Hiller noticed he was not wearing socks. He said he must have forgotten to put them on that evening. He first told Hiller that he was coming from Elgin State Hospital but later stated he had come from the Corn Products Plant in Summit, Illinois. Hiller then walked around the car to the passenger side and found a ski mask lying on the ground. The mask, which he identified at trial, was navy blue with white rings around the eyes and red and white stripes around the top. Defendant was placed under arrest and advised of his rights. Officer Liss then found on the floor in front of defendant's car a knife which had a 5-inch wooden handle with about an inch of broken blade remaining. Later, Officer Hiller found a pair of socks in defendant's coat pocket. The officers, with defendant in custody, went to the Maciejewski home where Patricia Maciejewski was shown the ski mask, the broken knife and the socks which had been recovered. She told Officer Hiller that based upon defendant's build and his coat, she was pretty sure he was her assailant. She pointed out shoeprints her assailant had left in the snow, and Officer Hiller caused defendant to make shoeprints for comparison. He testified that the prints made by the heel of defendant's left shoe matched the print of the assailant in a crack extending from the brand name logo toward the corner of the heel; further, that the brand name on each shoeprint was Florsheim. Defendant was then taken to the Cicero police station.

On cross-examination Officer Hiller could not recall testifying at a preliminary hearing that the ski mask, broken knife and socks were not exhibited to the complainant before defendant was taken to the police station. He admitted that nothing was done to preserve the shoeprints which had been the subject of comparison after defendant's arrest. Finally, he denied that defendant had been the subject of beatings or any other form of maltreatment at the station.

Defendant testified in his own behalf. He was returning from a drive through his old neighborhood in the vicinity of 22nd Street and Ogden Avenue when he was stopped by the police. His minister advised him to leave his house whenever he had an argument with his wife, and after an argument with his wife that evening he had decided to go for a drive. The police curbed his car on Cermak Road, rather than on Austin Avenue. He denied throwing a ski mask from his car and also denied owning a ski mask at that time. He told Officer Hiller that he worked at Tinley Park Mental Health Center and showed his identification card. The police took his keys and recovered a broken knife from a fishing tackle box in the trunk of his car. The knife had been broken on his last fishing trip of the season. He was wearing Italian shoes at the time of his arrest with a brand name of 'Seigard.' He did not own or wear Florsheim shoes at that time. Prior to being taken to the police station he was taken to the Maciejewski home and required to make shoeprints in the snow in the alley. At the police station he was beaten by Officers Hiller and Liss and a third policeman. They removed his shoes and socks and 'stomped' on his feet. When his socks were returned to him they smelled of urine. Later that morning other officers took him to the emergency room of MacNeal Hospital for treatment of injuries incurred in the beatings.

Defendant identified an emergency bill from MacNeal Hospital dated March 31, 1972, as well as photographs of his face and feet taken by Reverend Thomas Wilson on the same date. The bill and photographs were admitted into evidence. Defendant also offered into evidence his identification card from the Tinley Park Mental Health Center and the shoes he testified he was wearing on the day of his arrest. On objections by the prosecutor the identification card was excluded on the ground of relevancy, and the shoes were excluded as not timely offered in that no notice of their planned introduction was given to the prosecution. In rejecting the shoes the trial court also questioned their relevancy because they had not been demonstrated to be in the same condition as on the day of defendant's arrest.

Defendant then moved for discovery from the State of any statements taken of defense witnesses to be used in impeachment or in any other manner. The prosecutor objected that the memoranda made as to the witnesses were not substantial verbatim reports of oral statements made and were therefore not subject to discovery. After examining the memoranda In camera, the trial court denied defendant's motion.

Defendant's sister, Doris Holmes, his brother, Albert Holmes, and Reverend Thomas Wilson testified as to defendant's physical condition following his release on bond on March 31, 1972.

In closing arguments the trial court sustained defense objections to the prosecutor's remarks that people like Patricia Maciejewski can never forget the experience of such an offense; that if the evidence did not establish defendant's guilt, then no one the prosecutor had ever convicted deserved to have been found guilty; and that if defendant was not found guilty the jury...