People v. Nichols, s. 57102

Citation327 N.E.2d 186,27 Ill.App.3d 372
Decision Date18 March 1975
Docket Number57115,Nos. 57102,s. 57102
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven NICHOLS and Marshall McWilliams, Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

James J. Doherty, Public Defender of Cook County, Chicago (Robert M. Gray and Ian Levin, Chicago, of counsel), for defendants-appellants.

Bernard Carey, State's Atty. of Cook County, Chicago (Kenneth L. Gillis and Mark R. Harms, Chicago, of counsel), for plaintiff-appellee.

LEIGHTON, Justice.

These are consolidated appeals from judgments entered in a prosecution for armed robbery, rape, burglary and attempt to rape. Defendants Steven Nichols, Marshall McWilliams, and their co-defendant Willie Chandler, were jointly indicted for these offenses. After a trial by jury, Chandler was acquitted of all the charges; Nichols and McWilliams were acquitted of rape but convicted of armed robbery, burglary and attempt to rape. They were sentenced to serve concurrent terms of 25 to 35 years for armed robbery and burglary; 8 to 12 years for attempt to rape.

In this court, a brief was filed in their behalf in which it was argued that one of the prejudicial trial errors was the State's failure to produce a man's shoe found by the police at or near the scene of the crimes charged in the indictment. However, neither the brief, the abstract nor the record was clear concerning this claim; therefore, we ordered the State to file with us the minutes of the grand jury that indicted defendants. This was done; and based on these minutes, defendants filed a motion requesting reversal of their convictions and remand of the cause for a new trial because the minutes show that at the scene of the crimes, police officers indeed found a shoe they treated as evidence in the case. Defendants alleged that the shoe did not belong to any of them, a fact conceded by the State; that, as a consequence, this was evidence tending to prove their innocence; and that, despite a court order for production of all physical evidence, including evidence favorable to them, the State suppressed the shoe by not producing it in court. We took the motion with the case and, after reviewing the voluminous record of these appeals, we grant it, reverse defendants' convictions and remand the cause for a new trial. 1 The following are the facts and the principles of law that compel our conclusions.

I.

During the evening of September 5, 1970, a nun, a former nun, and an older woman who was visiting them, had two guests for dinner in their first-floor apartment in Hyde Park on the southeast side of Chicago. The last of the guests left at about 11:40 p.m. A few moments later, the nun retired for the night. The former nun and the older woman remained in the living room, engaged in conversation. Suddenly, a black man armed with a gun entered the apartment. He asked the two women if anyone else was there; and when told the nun was in the bedroom, he forced the women in that direction.

As they approached, the nun, hearing the man's voice, looked out, saw he was a stranger, and tried to close the door. The man, however, forced his way in and threw the three women upon a bed. Then, he closed the door and left; but in a few minutes, he returned with two young black men. Thereafter, and for about an hour and a half, the three intruders were in the apartment. The man who first came in struck the nun on the head with a gun and each tried to rape her. The two other men also attempted rape of the woman. All of them, during a period of time that followed, raped the former nun. One of the men ordered the older woman to remove her clothing; but, because she had a back brace, she could not comply with the demand. By force, the men took money and jewelry from the women. They ransacked the apartment and gathered a television set, a small radio and a typewriter which they placed near the apartment door.

At about 1:40 a.m., the men ran from the building. A woman who lived on the third floor came down the stairs and saw them running out of the apartment. Another woman, from a building across the street, saw an automobile parked heading south, on the street in front of her home. She saw a black man run out of the building on the other side of the street and put a box in the trunk of the vehicle. The woman later said the automobile was a 1962 white Chevrolet hardtop sedan. Her husband, who was awakened by the disturbance, saw the same automobile and noticed that it sagged in the rear. He called the police. In the meantime, the three women were taken to a nearby hospital for examination and treatment. The nun and the former nun were questioned there by investigating police officers and, in the days that followed, in their home. From the morning of September 6, and for a period of a little more than two months, police officers showed the two women mug shots and photographs from which, without success, they attempted to pick out pictures of the men who entered their apartment during the late evening of September 5, 1970.

On November 18, 1970, a police officer went to the home of the two women and showed them some photographs. The nun had told police investigators that she could identify three men she saw in the apartment, but the former nun had said she could identify only the first black man, the one who came into the living room while she and the older woman were talking. Consequently, the nun was shown the photos in her attempt to pick out three men. She picked out two pictures: the first, one of Willie Chandler; the second, of Marshall McWilliams. The former nun was shown the photos so she could pick out that of one man. She picked out the picture of McWilliams who, she said, was the first man who entered the apartment, the only one she could identify. As a result, Chandler was arrested that evening as he was walking on a Chicago street and McWilliams that afternoon at his place of employment. From McWilliams, police officers learned he was acquainted with Steven Nichols. They obtained a picture of him and together with others showed it to the nun; she picked out his picture as being that of one of the men who entered the apartment. This led to Nichols' arrest on December 6, 1970. Following the arrests, and in separate police station lineups, Chandler, McWilliams and Nichols were identified: the nun identifying all three; the former nun only McWilliams.

Thereafter, defendants were indicted and on May 20, 1971, they were brought to trial. Pre-trial motions were heard and disposed. Then the State, before a jury, presented its evidence. It called 10 witnesses: the nun, the former nun, two women neighbors, the husband of one of them, the owner of a record shop, a woman doctor, two crime laboratory technicians and a police officer. At the conclusion of this presentation, defendants moved for but the court denied directed verdicts. Then, defendants presented their evidence. They called 12 witnesses who testified in support of alibi defenses that had been interposed. Each defendant testified and denied the charges against him. Their evidence established that at the time of trial, each was 21 years of age. Each said he was gainfully employed at the time of his arrest; and, without contradiction, each testified that neither had ever been charged with an offense other than a traffic ticket. Chandler, in addition to his alibi testimony, denied having known Nichols and McWilliams prior to his arrest. In this regard, he was corroborated by the testimony of Nichols, McWilliams and that of their witnesses.

II.

Examination of the record before us shows that the State's evidence which tended to connect Nichols with the crimes charged came from two witnesses. (1) A police officer who testified that when McWilliams was arrested, he said he was with Nichols on the day of the crimes. (2) The nun who identified Nichols in court as one of the men who entered her apartment and committed the crimes charged in the indictment. The State's evidence of the same import against McWilliams came from six witnesses. (1) A woman who testified that she awoke at about 1:00 a.m. the morning of September 6 and saw a white 1962 Chevrolet two-door sedan speed away from the scene of the crimes. (2) Her husband who testified that he saw the car and it was white or light tan in color. (3) The owner of a record shop who testified that in September 1970 he saw McWilliams enter a white 1962 Chevrolet sedan. (4) A police officer who testified that when McWilliams was arrested he told his arrestors that he was in the company of Nichols on the day of the crimes. (5) The former nun who identified McWilliams in court as the first black man who entered her apartment and committed the offenses. (6) The nun who also identified McWilliams as one of the men who entered the apartment armed with a gun and committed the crimes she described to the jury.

The crucial evidence, however, without which there could not have been sustainable convictions, was the in-court identification of Nichols by the nun and of McWilliams by the nun and the former nun. This fact becomes most decisive in this case when we recall that under our law the testimony of one witness is sufficient for a conviction, even though that testimony is contradicted by the accused, provided the witness is credible and the accused is viewed under circumstances which would permit a positive identification. (People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631; People v. Stewart, 24 Ill.App.3d 605, 321 N.E.2d 450; People v. Smith, 18 Ill.App.3d 859, 310 N.E.2d 734.) Our courts often say that even if there is alibi evidence by or for the accused, it is for the jury to choose whom it will believe or disbelieve. People v. Hyde, 1 Ill.App.3d 831, 275 N.E.2d 239.

In this case, the identification testimony of the two women was positive. Each testified concerning her opportunities to observe the defendant she identified....

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