People v. Nicholson

• Decision Date: 31 May 1978
• Docket Number: No. 76-727,76-727
• Citation: 61 Ill.App.3d 621,18 Ill.Dec. 427,377 N.E.2d 1063
• Parties: , 18 Ill.Dec. 427 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven B. NICHOLSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1063

377 N.E.2d 1063

61 Ill.App.3d 621, 18 Ill.Dec. 427

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven B. NICHOLSON, Defendant-Appellant.

No. 76-727.

Appellate Court of Illinois, First District, Third Division.

May 31, 1978.

Charles I. Schwartz, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Laurence J. Bolon, Iris E. Sholder, Asst. State's Attys., Chicago, for plaintiff-appellee.

McGILLICUDDY, Justice:

Steven B. Nicholson was indicted on the charge of armed robbery. (Ill.Rev.Stat., 1971, ch. 38, par. 18-2.) Following a jury trial he was convicted of the offense of robbery and was sentenced to a term of imprisonment in the penitentiary of one to five years. He now appeals that conviction, raising four issues for review: (1) whether it was reversible error for the court to instruct the jury on the lesser included offense of robbery; (2) whether the trial court committed reversible error in the manner it conducted the voir dire examination of prospective jurors; (3) whether he was proven guilty beyond a reasonable doubt, and (4) whether a mistrial should have been declared when a witness communicated Nicholson's prior criminal record to the jury.

Nicholson's conviction was based upon his participation in a purse-snatching incident which occurred on the evening of December 24, 1973, in the vicinity of Rockwell and Cortez Streets in Chicago. The street immediately south of Cortez is Augusta Boulevard.

The victim of the purse-snatching incident was Virginia Bartush, a medical student at Loyola University. She testified that at approximately 11:00 p. m., on December 24, 1973, she was walking north on the east side of Rockwell, going to get her car. When she was about three-quarters of a block north of Augusta, a young man suddenly came up behind her and tried to grab her purse. The assailant was unsuccessful, however, and ran away. Although she was able to see his face only "fleetingly" she did observe the clothing he was wearing. Bartush stated that the attacker was wearing tight, beige levis which stopped about three inches above his ankles. His shoes had a "stripe or something" on the side and had light soles with two-inch heels. Bartush also noted that he was wearing a light cotton jacket.

After the assailant left, the complainant stated that she continued walking north along the east side of Rockwell, crossing Cortez. There is a church on the northeast corner of Rockwell and Cortez and Bartush was approximately halfway down the length of the church when the man ran up to her and again attempted to take her purse. As he ran toward her Bartush testified that the light reflected something he held in his hand as " . . . it was a short small knife. It appeared to be a small knife." She struggled with the man for approximately a minute and a half, during which time she was looking down at the assailant's face which was less than a foot from hers. Finally, because the assailant's tugging on the purse was hurting her arm, Bartush let him take the purse, after which the man ran away.

The area in which Bartush was accosted was lit by streetlights. She testified that there was a streetlight at the alley between Cortez and Augusta as well as one at the alley between Cortez and Thomas, the street north of Cortez. In addition, there was a light at the corner of Cortez and Rockwell.

The police arrived about 15 minutes later. Bartush recalled that she described her attacker to the police as a black man, about 23 years of age, approximately five feet, six inches tall, weighing about 140 pounds and of slight build. His hair was black and about two and a half inches long; it was wet and falling down "in ringlets" on his forehead. His eyes were dark brown. She also recalled that she told the police the attacker had a slight mustache, but no other facial hair. Bartush stated that she never made any statement to the police about the complexion of her assailant other than he was black.

Officer Kukielkh, one of the officers to whom this description was given, testified on Nicholson's behalf. The description that he recalled the complainant giving contained nothing about the assailant having a mustache or having a slight build. However, he did claim that she described him as having a dark complexion.

On December 26, 1973, Bartush was contacted by Officer Robert Schultz of the Chicago Police Department by telephone. In that conversation she told him that, in addition to the characteristics she previously related, her assailant also had one bad eye. Officer Schultz testified that Bartush also told him the assailant had a "medium" complexion.

Two days later Officer Schultz came to Bartush's home with some photographs for her to examine. While she did not recognize anyone from among a number of small individual photographs, she identified Nicholson from a group of large photographs of lineups. In early January Schultz returned to Bartush's residence with a single small photograph of Nicholson, at which time she again identified him as her assailant.

Bartush made another identification of Nicholson at his preliminary hearing. She testified that at the hearing she heard the clerk call the defendant's name immediately prior to calling hers and that she was familiar with Nicholson's name before the hearing. In addition, the evidence showed that Nicholson was attended by a uniformed police officer at this hearing and that he was the only black male in the area of the judge's bench when Bartush made her identification.

At trial the complainant again identified Nicholson as her assailant. She also agreed that, at the time of trial, Nicholson had a small goatee and that he had the same goatee in the photographs from which she identified him.

Nicholson presented an alibi defense. He claimed that he spent December 24, 1973, at his mother's residence at 3544 South State Street in Chicago, along with his wife and three children. In addition, his twelve brothers and sisters, as well as four or five other individuals were also at his mother's home during that day. At about 9:30 that evening, Nicholson claims that his wife and three other individuals left to go to a bar, but he stayed at the apartment. About 10:00 p. m., he and one of his sisters began assembling Christmas toys, a task which lasted three or four hours. Nicholson claimed that his wife returned at about 2:30 or 3:00 on the next morning, and that he eventually left his mother's house about noon on December 25th having eaten his Christmas dinner at 10:00 in the morning. Nicholson also testified he had an artificial left eye and that it had been artificial since he was 10 or 11 years old.

Nicholson's mother, sister and wife presented essentially the same story as to the occurrences on the evening in question. However, Nicholson's wife claimed that she had dinner at her mother-in-law's residence on the evening of December 25th.

The first argument presented by Nicholson is that the court erred in tendering to the jury an instruction on the offense of robbery. The indictment returned against Nicholson charged him only with armed robbery. At the conference on instructions, the State requested that the court instruct the jury on the lesser included offense of robbery. Over Nicholson's objection, this instruction was given. It is Nicholson's position on appeal that the instruction should not have been given since the evidence does not support a verdict of guilty for the offense of robbery.

In order to reduce the possibility of a compromise verdict, an instruction on the lesser included offense of robbery is considered to be improper where the evidence shows that the accused is either guilty of the higher offense of armed robbery or not guilty of any offense. (People v. Keagle (1967), 37 Ill.2d 96, 224 N.E.2d 834; People v. Thompson (1976), 35 Ill.App.3d 773, 342 N.E.2d 445.) However, since the evidence presented at trial raised a factual issue as to the existence of a dangerous weapon, we believe that this principle is not controlling in the instant case. Bartush testified that the second time the attacker accosted her she noted something shiny in his hand. The relevant testimony reads as follows:

"As he came running up I saw a flash, you know, a light. The light reflected something that he had in his hand. And it was a short small knife. It appeared to be a small knife."

Bartush's statement that the object which the assailant held "appeared to be a small knife" introduces an inference of equivocation into her testimony. This statement is open to a number of reasonable interpretations, among them is the interpretation that Bartush was uncertain whether the assailant held a knife or any other dangerous weapon in his hand. The jury could reasonably interpret this statement as indicating that the assailant was not armed. The defendant never directly challenged Bartush's testimony but rather relied upon an alibi defense. It is not necessary for a defendant to directly challenge the State's evidence to raise a factual issue. We, therefore, conclude that the court did not err in instructing the jury on the offense of robbery.

The second issue raised by Nicholson is whether the court committed reversible error in its conduct of the voir dire examination of prospective jurors. Nicholson initially argues that the court improperly denied his request to have defense counsel personally conduct the examination. In the alternative, Nicholson maintains that he is entitled to reversal because the examination actually given by the court was conducted in a prejudicial manner.

In asserting that defense counsel had a right to directly examine the veniremen, Nicholson relies upon the second sentence of section 115-4(f) of the Criminal Code. (Ill.Rev.Stat., 1975, ch. 38, par. 115-4(f).) This sentence was added to the code, effective October 1, 1975, and provides that both counsel for the State as well as counsel for the defendant have the right to...