People v. Kelly

Decision Date24 January 1975
Docket NumberNo. 58629,58629
Citation324 N.E.2d 82,25 Ill.App.3d 753
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank KELLY, also known as Frank Wright, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James J. Doherty, Public Defender, Chicago, for defendant-appellant; Bernard M. Talbert, Skokie and James N. Gramenos, Chicago, of counsel.

Bernard Carey, State's Atty., of Chicago, for plaintiff-appellee; Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Asst. State's attys., of counsel.

SULLIVAN, Justice:

After a jury trial, defendant was convicted on two counts of armed robbery and sentenced to concurrent terms of 10 to 20 years.

On appeal, he contends (1) prejudicial religious remarks were made during closing argument; (2) improper reference was made during argument to his prior burglary conviction; (3) the proof presented was not consistent with the charges in the indictment; and (4) the sentence is excessive and should be reduced, because of his background and physical condition.

The facts are summarized as follows. On a December afternoon, James Sheridan observed a stranger enter and walk to the back of his grocery store. Another stranger then entered, walked up to a counter, and drew a shotgun from under his coat. When Sheridan saw the shotgun, he took whatever money he had in his pockets and from nearby cash drawers. He gave this money to a clerk for safekeeping, and he and this clerk left the store through a front door. While standing on the sidewalk, he observed the two men, one holding the shotgun, speaking with a store clerk. At trial, Sheridan identified defendant as the man with the shotgun and stated he was wearing a dark hat and coat.

Burtha Young, a clerk, was behind a counter when she noticed Sheridan leave the store with one of the other clerks. She turned to ask another clerk, Debra Costic, why they were leaving and at that time she observed a man, whom she identified as trial as defendant, pointing a shotgun at Debra. He told Debra to give him the moeny, and Debra gave him the contents of the register. Burtha then opened the register at her counter and handed the money to Debra, who passed it on to defendant. No demand for moeny from Burtha was made by defendant. All of the occupants of the store, including Debra and Sheridan, who had remained outside, observed the two men leave the store and enter a yellow Buick with a black top. A woman motorist, apparently hearing Sheridan call for help, trailed the Buick and obtained its license number, which she later gave to Sheridan who in turn gave it to the police with a description of the car and the two men.

Burtha, were then locked in a walk-in meat cooler.

Later that evening, Officer Massano investigated a traffic accident involving a black and yellow Buick which had struck two parked cars. He said that the driver of the Buick, later identified as defendant, had an odor of alcohol on his breach and was wearing a dark coat which came down below his waist. He also noted the license number was HK9478.

On the day following the robbery, Officer Bills, who had obtined the same license number of HK9478 from Sheridan, determined the car was owned by James Giles who, when brought to the station and placed in a lineup, was not identified by Sheridan as a participant in the robbery.

Later, Giles brought Officer Bills and another officer to an apartment where defendant was staying and, when Bills observed that defendant fit the description Sheridan had given him of one of the robbers, he placed defendant under arrest. Defendant was brought to the station and placed in a lineup with four other men, and he was identified by Sheridan as one of those involved in the robbery. Bills took a photograph of this lineup and when it was shown to Burtha Young, she also identified defendant as a participant.

Defendant and Reverend Walter Cox testified that on the day of the robbery defendant was painting Reverend Cox's home from early morning until about 4 P.M., when Reverend Cox, who had been at his home the entire day, drove defendant to Giles' place of employment where defendant picked up Giles' car. Defendant also testified that he took the car to pick up some chemicals for Giles. Giles, however, testified he had given defendant permission to use his car on that day to look for a job. He had agreed to leave his car in a lot at his place of employment for defendant to pick up, and when he checked the lot at 12:00 noon he noticed that his car was gone. Defendant testified further that after he had picked up Giles' car, he did not go for chemicals but instead went to a tavern for about two hours and, after leaving the tavern, while driving Giles' car he collided with two parked cars while trying to avoid a small girl.

OPINION
I.

Defendant first contends he was denied a fair trial because of prejudicial remarks by the prosecutor during closing arguments. His testimony was that at the time of the robbery, he was painting the home of Reverend Cox. The latter, a Baptist minister and pastor, supported defendant's testimony in this regard. In rebuttal argument, the prosecutor made the following comments:

'If there had been a statute of the blessed Mary in the courtroom when the Reverend testified, she would have put her hands over her ears becuase there was nothing spewing forth from the witness chair but unmitigated lies.

I am sorry if the State couldn't bring in a fine, upstanding witness like the Reverend Cox, self-ordained, or ordained by some other Reverend. How unusual that he never finished grammer school--strike that; he never finished high school, but he went on to a university--two colleges, one of divinity that he didn't finish and one of business school; this he never finished. How strange. And this Reverend, he is separated from his wife. How strange . . . if he (defendant) can get somebody to come up and lie for him under the cover of the cloth of God, I will believe him. That's what you are saying . . .. (If you find the defednant not guilty.)'

Defendant argues the Blessed Mary is a dominant symbol of the Catholic Church and, because Reverend Cox was a Baptist minister and both he and defendant were black, that the comments were an appeal to white Catholics on the jury calculated to evoke religious and racial prejudice.

Initially, we note that no objection was made to these comments, and thus the contentions that they were appeals to racial and religious prejudice must be deemed to be waived. (People v. Donald, 29 Ill.2d 283, 287, 194 N.E.2d 227.) Furthermore, we are of the opinion that these comments were not error requiring reversal, for the following reasons:

First, we note that whether language used by a prosecutor will require reversal of a conviction depends upon the facts of each case (People v. Baker, 365 Ill. 328, 334, 6 N.E.2d 665), and that where the argument of defense counsel invites or provokes a response, defendant cannot complain that he was prejudiced by the response. People v. Reyes, 131 Ill.App.2d 134, 266 N.E.2d 539.

Here, the record discloses that defense counsel, in his final argument, emphasized that Reverend Cox was a Baptist minister and missionary, and he said, 'I can't imagine any Baptist minister or missionary can sit on the witness stand after taking an oath and tell you that a man painted his house on a certain day when in fact it did not happen * * *.' Thus, it appears that the prosecutor's comments, although perhaps exceeding the bounds of propriety, were in response to the argument of the defense counsel.

Second, not every ill-advised statement in a closing argument will warrant reversal of a conviction (People v. Phillips, 126 Ill.App.2d 179, 261 N.E.2d 469), nor will remarks of counsel in final argument, even though improper, constitute reversible error unless they result in substantial prejudice to a defendant. (People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432.) Here, it appears that two eyewitnesses with good opportunity to view the participants in the robbery, made positive pretrial and trial identifications of defendant. In addition, a police officer testified that on the day of the crime defendant was in an automobile accident while in the possession of the car used in the robbery, and at that time he was wearing a dark coat similar to the description of the coat given by Sheridan. Moreover, although Reverend Cox and defendant said that Giles' car was taken from the parking area sometime after 4 P.M., Giles said his car was gone from that area at 12:00 noon. In view of the totality of the evidence supporting the jury's finding of guilt, we think that the comments complained of were not a material factor in the conviction of defendant (see People v. Berry, 18 Ill.2d 453, 165 N.E.2d 257), and we believe they did not result in substantial prejudice to defendant.

II.

Defendant also complains that the prosecutor's closing argument reference to his prior conviction was inflammatory and prejudicial. In this regard, we note that it was brought out during defendant's direct examination that he had previously been convicted of a crime, and it was developed in his cross-examination that it was for burglary. The following colloquy took place in the rebuttal argument of the prosecutor:

'* * * this man Mr. Kelly who is not a stranger to the penitentiary. Ladies and Gentlemen, he may enjoy going back. And I say the only thing-- MR. MARTIN (defense counsel): I object.

THE COURT: Sustained.'

It is contended that, although the comments would have been proper had they been directed to defendant's credibility, they were improper here becuase they were intended to establish his...

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  • People v. Mitchell
    • United States
    • United States Appellate Court of Illinois
    • December 23, 1975
    ...... See People v. Benson, 132 Ill.App.2d 443, 270 N.E.2d 181; compare People v. Stock, 56 Ill.2d 461, 309 N.E.2d 19; People v. Kelly, 25 Ill.App.3d 753, 324 N.E.2d 82. Therefore, we conclude that the opening portion of the prosecution's argument to the jury did not prejudice the defendant. People v. Carr, 114 Ill.App.2d 370, 252 N.E.2d 912; People v. Forbis, 109 Ill.App.2d 220, 248 N.E.2d 298. . VIII. .         We ......
  • People v. Weatherspoon, 77-1258
    • United States
    • United States Appellate Court of Illinois
    • August 4, 1978
    ...argument prejudices defendant. People v. Coleman (1977), 51 Ill.App.3d 499, 9 Ill.Dec. 515, 366 N.E.2d 1026; People v. Kelly (1975), 25 Ill.App.3d 753, 324 N.E.2d The cases cited by defendant are distinguishable. In People v. Patterson (1976), 44 Ill.App.3d 894, 3 Ill.Dec. 479, 358 N.E.2d 1......
  • People v. Walsh
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    • United States Appellate Court of Illinois
    • January 29, 1980
    ...... For example, in People v. Kelly (1st Dist. 1975), 25 Ill.App.3d 753, 324 N.E.2d 82, defense counsel in his final argument emphasized that the witness was a Baptist minister and missionary. Defense counsel then argued: "I can't imagine any Baptist minister or missionary can sit on the witness stand after taking an oath and tell ......
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