People v. Mitchell, No. 59749

CourtUnited States Appellate Court of Illinois
Writing for the CourtLEIGHTON; DOWNING, P.J., and STAMOS
Citation341 N.E.2d 153,35 Ill.App.3d 151
Docket NumberNo. 59749
Decision Date23 December 1975
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven MITCHELL, Defendant-Appellant.

Page 153

341 N.E.2d 153
35 Ill.App.3d 151
PEOPLE of the State of Illinois, Plaintiff-Appellee,
Steven MITCHELL, Defendant-Appellant.
No. 59749.
Appellate Court of Illinois, First District, Second Division.
Dec. 23, 1975.

Page 155

[35 Ill.App.3d 153] James J. Doherty, Public Defender of Cook County, Chicago (Terrence M. rubino, Lansing, and James N. Gramenos, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., County of Cook Chicago (Laurence J. Bolon, Raymond J. Prosser, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

LEIGHTON, Justice.

This was a prosecution in which a jury convicted Steven Mitchell of armed robbery. The trial court, after overruling post-trial motions and hearing evidence in aggravation and mitigation, sentenced him to a term of 20 to 60 years to be served

Page 156

consecutively with one of four to four years and a day he had received for a previous armed robbery conviction. He appeals to this court.

In his opening brief, defendant presented six issues, none that discussed the legal sufficiency of the evidence. Consequently, we ordered the parties to file supplemental briefs advising us of their views on this subject. This was done. Therefore, seven issues are before us for review.

1. Whether the evidence on which the jury returned its verdict proved defendant guilty of armed robbery beyond a reasonable doubt.

2. Whether the trial court erred in denying defendant's motion to suppress evidence which the state obtained as a result of his arrest without a warrant in his home.

3. Whether it was plain error for the prosecution to present testimonial evidence which showed the jury that when he was advised of his constitutional rights at the time of his arrest, defendant refused to answer questions asked of him by policemen.

4. Whether the trial court erred when, in permitting the state to impeach a written statement he gave the police, it admitted testimonal evidence that told the jury of defendant's prosecution for another offense.

5. Whether the trial court erred when it admitted into evidence several cards that were found in defendant's wallet at the time of his arrest.

[35 Ill.App.3d 154] 6. Whether the opening portion of the prosecution's closing argument to the jury was prejudicial.

7. Whether the trial court imposed an excessive sentence when it ordered defendant to serve a consecutive sentence of 20 to 60 years.


On Thursday morning, March 23, 1972, Joseph Eisenberg left home and went to his fur shop on the first floor of his three-story building at 8110 South Cottage Grove in the city of Cicago. In the rear of the building, Eisenberg had a detached garage in which he kept his 1969 Pontiac. Defendant Steven Mitchell and his family were Eisenberg's tenants and lived in an apartment on the second floor. At about 5 p.m. that afternoon, Eisenberg's wife, Frances, called him from the Marshall Field store in Chicago and asked him to meet her there at 6 o'clock so they could drive home. He agreed to do so. Eisenberg, however, did not keep the appointment; nor did he get home that evening.

The next morning, sometime between 8:30 and 9:00 a.m., Frances Eisenberg and her son-in-law, Paul Chervin, a Chicago lawyer, went to the fur shop looking for Eisenberg. The front door was locked. They ent to the rear and looked into the garage through a window and saw that Eisenberg's automobile was not there. Chervin opened the garage door and thereupon, both of them saw Eisenberg's body on the Floor, face down, under some boards. They called the police; and later examination disclosed he had been killed by a bullet wound in the back of the head. His face and forehead had marks which a pathologist said could have been caused by heavy blows with the butt of a gun.

At about 11 a.m., the same morning, John Muscarella was alone in his car approaching proaching the intersection of Racine and Webster in the city of Chicago. As he proceeded, another car, heading west on Webster, ran into him. The driver was Steven Mitchell; and it was Eisenberg's 1969 Pontiac. In identifying himself to Muscarella, defendant said his name was 'E. Mitchell' and that he lived at 4756 South Washtenaw, a statement that was untrue. Muscarella, in turn, gave defendant

Page 157

his name which defendant wrote on a card. They parted.

At about 1 p.m., the same afternoon, Chicago policeman Henry Crump and two fellow officers were assigned to investigate the death of Joseph Eisenberg. They saw defendant at 8110 South Cottage Grove and asked him if he knew anything concerning the circumstances of his landlord's death. Defendant said he knew nothing except earlier in the day his having overheard his brother and his sister tell their mother [35 Ill.App.3d 155] '* * * that something was funny in (Eisenberg's garage) the previous evening.' Crump talked with the two children; and as a result, the following day, he and his fellow officers took defendant his brother and sister to a police station where they were questioned. The younger children were shown photographs from a police mug book, and they gave the officers written statements. Thereafter, the three were released. No further inquiry was made of them by the police concerning Eisenberg's death. The next day, March 26, 1972, a Chicago policeman found Eisenberg's automobile parked one block away from his fur shop. When it was examined by crime laboratory technicians, it was discovered that the rear view mirror had a fingerprint that was identifiable and suitable for comparison.

On July 6, 1972, at about 3:30 a.m., Chicago policemen Michael O'Connor and Irving Kaplan went to apartment 303 at 5135 South Federal and knocked on the door. When defendant opened it, Officer O'Connor arrested him. He was searched; and on his person was found a wallet that contained six credit cards, an Illinois driver's license, a social security card and a blank check that belonged to Joseph Eisenberg. The card bearing Muscarella's name was amoung the items in the wallet. When O'Connor asked defendant what he was doing with credit cards and items of identification that obviously did not belong to him, he said that the owner of them was dead '* * * and he just had them.' Defendant was taken to a police station. There another police officer made a victim check and learned that Eisenberg had been murdered. As a result, defendant was transferred to the central headquarters of the Chicago police department for questioning. In the course of that, another policeman asked defendant how he happened to have Eisenberg's personal belongings in his possession. He explained that he found the items in an alley behind his home a month before. Defendant was asked by the same officer if he had ever been in Eisenberg's 1969 Pontiac. He said he had not. He was asked a second time by another police officer if he had ever been in Eisenberg's vehicle. Again, he said he had not. Defendant's fingerprints were taken and when they were compared with the fingerprint that had been found on the rear view mirror of Eisenberg's Pontiac, they matched. A short time later, defendant agreed to give the investigating officers a written statement. This was arranged. An assistant state's attorney was present. One officer asked the questions, another did the typing. Defendant was advised of his constitutional rights, but he waived them. When the statement was completed, it consisted of five typewritten pages.

And in the course of giving it, defendant told the officers that at about 11:30 on the morning of March 23, 1972, he saw his friend, Larry Lewis, [35 Ill.App.3d 156] and invited him to his home; that later in the day, Lewis come with a man he knew only by the name 'Jitters'; that sometime between 2:30 and 3:00 p.m., when Eisenberg came out of his fur shop to go to a mailbox, the two men asked who that was and he told them the man was his landlord; that Lewis and Jitters left the apartment, after which defendant fell asleep; that about 30 minutes later, they returned and he heard them arguing, Jitters asking Lewis 'why he shot the man'; that Lewis showed him a fiveshot .38 caliber pistol which defendant learned was used in shooting Eisenberg; that the two men gave him a wallet in

Page 158

which were Eisenberg's credit cards and identification items found in defendant's possession when he was arrested; that he did not tell this story to Officer Crump on March 24, 1972 who asked him about Eisenberg's death '(b) ecause at the time, I felt that I was too involved as it was, and decided to keep quiet'; that a short time after Lewis and Jitters gave him the wallet, the three of them went riding in Eisenberg's Pontiac, a ride that consumed six hours; that he drove, left Lewis and Jitters and then parked the dead man's car a few blocks from his fur shop. After he made the statement, defendant was charged and brought to trial.


The state called eight witnesses, stipulated to the testimony of three, offered and had received in evidence 15 individual and group exhibits consisting of photographs, documents and the five-page statement. Defendant did not testify. He called one witness, his young brother who, with his sister, had told their mother what they saw in and about Eisenberg's garage the evening before he was found dead.

When defendant's counsel made his opening statement to the jury, he admitted that the state's case against his client was going to be supported by '* * * very strong and persuasive evidence.' In his final summation, counsel conceded that Eisenberg was murdered at the time he was robbed of his automobile and the personal belongings found on defendant when he was arrested. Speaking on defendant's behalf, the lawyer again agreed that the state's evidence was persuasive, proof which he said defendant had not contested. But he argued that none of it was direct; all of it was circumstantial and did not prove defendant guilty beyond a reasonable doubt. In the supplemental...

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